JAWAD ALI SHAH Vs. KAMLAPAT RAI

JUDGEMENT

(1.) IN this case the Judge of the Small Cause Court at Gorakhpur dismissed the plaintiff s suit on the sole ground that no succession certificate had been filed. The plaintiff was one of several heirs of a deceased creditor. I have examined the order-sheet. The suit was finally decided on the 22nd of November 19:8. It was on that date that the defendants first appeared to defend the suit and it was on that date the plea was taken that a suit without a succession certificate is not maintainable. The Court came to the conclusion that this was a good plea, It, however, dismissed the suit without giving the plaintiff an opportunity of obtaining the necessary certificate and filing if, as it obviously was the Court s duty to do for the ends of justice. If any such opportunity was given to the plaintiff, there ought to be something in the order-sheet or on the record to show that this was done. There is nothing on the record. As I have paid above, the case came up for hearing on the 22nd of November 1918, and was heard and dismissed that day. I allow the application, I set aside the decree of the Court below, I direct that Court to restore the case to its original number on the file and to proceed to hear and determine it according to law. I am informed that the succession certificate has already been obtained. The Court will give the plaintiff an opportunity of filing it If he refuses to file it, then his suit may rightly be dismissed by reason of his default, otherwise it must be decided on its merits. The costs of this application will abide the result of the suit.