MATA BUX LAL Vs. BRIJ MOHAN

JUDGEMENT

(1.) THIS is a revision under Section 115 from the decree of the Subordinate Judge dismissing the appeal of the applicant from a decree of the Munsif. It appears that the opposite party Brij Mohan instituted a suit against the applicant in the Court of the Munsif of Jaunpur for the recovery of money on the basis of a bond, dated the 27th of March 1914. The defendant denied his obligation under the bond and stated that the bond was given by way of satisfaction to the plaintiff for the debt due to him from one Musimmat Rajrani. In other words, he pleaded that he simply stood surety for Musammat Rajrani. On the day of hearing the plaintiff was absent. The learned Munsif, however, proceeded with the case and recorded the statement of the defendant and decreed the claim in p Article In appeal the defendant contended, and the same point is urged here, that under Order IX, Rule 8, Civil Procedure Code, the learned Munsif ought to have dismissed the claim for default and should not have tried the case. In support of this view the cafes of Kesri Chand v. National Jute Mills Company 17 Ind. Cas. 87 : 119 : 16 C.W.N. 968 and Bhul Koer v. Hashmatullah Khan 29 Ind. Cas. 553 : 18 A.L.J. 679 : 87 A. 460 are quoted. I think that the objection for the applicant is well founded. The Court of first instance had no option but to dismiss the case in default when it found that the plaintiff on the day of hearing was absent learned Munsif was quite wrong in appreciating the force of the plea for the defence. He was under the impression that the execution of the bond was admitted and the band was challenged on the ground of consideration. The plea advanced by the defence really meant that the bond was given by way of security. The creditor could not sue the surety only without impleading the principal. I, therefore, allow the revision, set aside the decree of the Court below and dismiss the claim of the plaintiff for default under Order IX, Rule 8 Civil Procedure Code. Taking all the facts into consideration I do not think the opposite party should be saddled with costs. I direct that each party bear his own costs in all Courts.