RAMAPT CHATTERJEE Vs. SACHINANDAN NANDI

JUDGEMENT

(1.) In this case the petitioner before us instituted a suit for accounts and on the 10th May 1918 obtained a preliminary decree. By the preliminary decree the defendant, who is the opposite party before us, was directed to prepare and complete their Khatas and render accounts to the petitioner within 60 day from that date. On the 9th July 1918, that is on the 60th day from the date of the preliminary dearee it was found that the defendant had not completed the Khatas and had not rendered accounts, and the plaintiff was thereupon directed to deposit Rs. 100 (as the fee of the Commissioner appointed for the purpose of preparing accounts) within the 15th July. That order, we may observe, was premature by one day. It was also made in the absence of the petitioner and his Pleader. On the 15th July it was found that the plaintiff had not deposited the costs for the appointment of the Commissioner, and his Pleader having intimated that he had no instructions, the plaintiff s suit was dismissed, the order being one made either under Order IX, Rule 8, or as it purported to be, under Order XVII, Rule 3. This order was made in the absence of the petitioner and is again an order premature by one day. On the 13th August 1918 the petitioner applied to the Subordinate Judge for the restoration of his case, on the ground that the order of the 9th July had never in fact come to his knowledge. That petition was rejected on the 16th August. But on appeal to the District Judge the petitioner obtained an order setting aside the Subordinate Judge s order of the 16th August and digesting that the application for restoration should be re-heard by the said Subordinate Judge. This order was received in the Court of the Subordinate Judge on the 26th February 1919, and thereupon the Subordinate Judge made an order directing the petitioner to pay in process fees for notice on the other side within two days. The time allowed for the payment of process fees, we may remark, is obviously inadequate. The opposite party defendant, however, appeared in the matter and the case went on until the 7th June, when the petitioner being absent and his Pleader having no instructions, the application for re bearing was rejected. It has been shown by the petitioner, and it has not been disputed by any counter-affidavit, that the absence of the petitioner on the 7th June and the absence of instruction on the part of his Pleader were due to the fact that the petitioner s Pleader had informed him that the case would be heard not on the 7th June but on the 7th July. Upon the rejection of his application on the 7th June there followed another application for re-hearing presented on the 23rd June. The order upon this application was that the petitioner should file processes and pay in process fees on the 25th. Here again time allowed for payment of process fees was inadequate and the further order made on the 25th June rejecting the petition on the ground of non payment of process fees was again prematura by one day. Obviously as the result of the order made on the 23rd, the petitioner had the whole of the 25th within which to pay the process fees and no order of rejection should have been made, if made at all, before the 26th. On the 18th July the learned Subordinate Judge refused to review the preceding orders.

(2.) On this review of the successive stages through which this litigation has passed, it must be held that the petitioner before us has had no reasonable opportunity of complying with the orders of the Court and has bad no reasonable opportunity of presenting his case or substantiating it in the proper course.

(3.) We, therefore, set aside the whole of the orders made by the Subordinate Judge after the order made on the 9th July and we direct that on payment into this Court by the petitioner on or before the 15th March next of the sum of Rs. 100 for the appointment of the Commissioner, the Subordinate Judge do proceed with and re hear the case in accordance with law. As to the costs of the Court below after the 9th July and as to the casts of this Court we make no order.