DIVI BHUNESWARI KUER Vs. MTSAMA KUER

JUDGEMENT

(1.) This application arises in the following circumstances.

(2.) The plaintiff instituted a suit for rent for the years 1348 to 1346 Fasli and was directed to file process fees amounting to Rs. 3-6-0 by 7 October 1939. There were five defendants in the suit of whom one was a minor. On 7 October the plaintiff filed only Rs. 3. The Court pointed out that annas six was still due and fixed 16 November for the disposal of the suit. On that date the plaintiff applied for the appointment of a guardian ad litem for the minor defendant and filed a fee of Rs. 2 for that purpose. The defendants were not present. The balance of six annas due from the plaintiff was not paid and the suit was dismissed for default. An application for restoration of the suit was filed. The plaintiff now comes in revision and contends, in the first place, that the Court had no jurisdiction to dismiss the suit on 16 November as no date had been fixed for appearance of the defendants.

(3.) Reliance was placed on the decision in Sripati Saran Prasad Singh Prasad Singh V/s. Indarjit Mahton A.I.R. 1939 Pat. 160. It was there held that where the Court calls upon the plaintiff to file process fees and copies of the plaint by a certain date but on that date nothing is done, the Court has no jurisdiction to dismiss the suit. The reason given was that the Court acted illegally in calling upon the plaintiff to file process fees before fixing the date for the appearance of the defendant. That case is distinguishable from the present. 16 November was fixed for the disposal of the suit, that is to say, it was the date which the Court fixed for hearing the parties. The reason why the defendants were not present was that the process fees had not been paid.