K B DUTT Vs. SHAMSUDDIN SHAH SHAHEB

JUDGEMENT

(1.) In my opinion, this rule should be made absolute. It appears that the plaintiff filed a suit against a very great number of defendants in October 1923 asking, in substance, for a declaration of title to a certain property and for certain reliefs as regards possession and rents. Certain of the defendants filed written statements but none of the opposite parties to this rule except defendant 17 tiled a written statement. A local investigation was ordered in 1924 and it appears that in 1925 various local enquiries were directed and were prosecuted. The commissioner made more than one report and, in May 1926, certain of the defendants filed objections to the report. The case was being tried before a Subordinate Judge of Dacca and, in that town there is apparently more than one Subordinate Judge. In November 1926, it appears that the case had been transferred from-one Judge to the other more than once and the position was, when we coma to March 1927, that the case was on the file of the Second Subordinate Judge. It appears that on 30 June 1927, it was transferred to the file of the Fourth Subordinate Judge, a Mr. Ghose. Before that time the final date for hearing, 18 July 1927, had been fixed. There is no doubt that all the parties-knew or had the usual means of knowing that 18 July was the hearing date. It is said that some of them had not become aware of the fact that instead of one Judge trying the case it was to be tried by another. But the two Judges were not sitting in different towns and I am entirely unable to see on the facts of this case that that matters very much.

(2.) Now, what happened on the date in question was that the Subordinate Judge, first of all, was asked by both sides to give an adjournment and he refused. I need not say that it is often very right indeed for a Judge to refuse adjournments which are asked for by both sides. The commonest experience in the District Courts is that for no reason at all cases are adjourned again and again and again and nearly always on petitions of both sides. The plaintiff was able in spite of that refusal to collect certain witnesses and he did, in fact, call four witnesses when the case was taken up on that day. One of the defendants, defendant 13, called a witness. The other defendants were in this position, it would seem, that when they found that the ease was being taken up they too wanted an adjournment. They had not any excuse whatever for themselves not being properly present or not having properly instructed a pleader or anything of that kind but they alleged before the Judge that there were certain witnesses against whom they desired processes to issue.

(3.) The learned Judge was not satisfied that there was any reason why the case should not go on and he determined that it should1 go on. The plaintiff called his four witnesses and defendant 13 called his witness. Anybody who desired to take part was heard in argument, but the particular defendants with whom we are concerned did not take any part in the proceedings. When they found that the Judge was going to go on with the case, neither they nor their pleader took any further part in the proceedings. Thereafter, the plaintiff's suit having been decreed as against them ex parte, certain of these defendants on 16 August 1927 applied, it would seem, under Rule 13, Order 9, Civil P.C., for restoration of the suit. As the decree was an ex parte decree against them, they were entitled to apply under that rule. They put forward a Bengali petition which contained no reasons whatever of the character required by Rule 13. They made a case that the value of the suit was high and that it was a great pity that it was decided against them ex parte but any relevant reason why they were not ready on 18 July was not disclosed by the petition. They supported that case by calling two witnesses. One was a gentleman who had recently been appointed guardian ad litem of a certain party who was not one of the applicants. The evidence of the other witness disclosed no reason, so far as I can discover, why these defendants were not ready to appear and take part in the case on 18 July.