M FAKIRULLAH KHAN Vs. BALDEO SAHAI

JUDGEMENT

(1.) THE appellant Munshi Fakirullah Khan is an agent in the Supply and Transport Department. He joined the Department before August 1914. He is an Indian soldier within the meaning of Act XII of 1915. Nearly two years after Act XII of 1915 was passed, he instituted a suit in the Court of the Munsif of Nagina, to obtain possession of certain property by the exercise of an alleged right of pre- emption, and appointed a pleader to conduct his ease for him. THE date fixed for the hearing of the case was the 9 July 1917. On that date the defendant asked for an adjournment, and the case was adjourned to the 11 August 1917, On the 11 August 1917 the plaintiff's pleader asked for an adjournment and the case was adjourned to the 10 December 1917. On the last mentioned date the plaintiff's pleader was present. According to the entry in the order-sheet, the plaintiff's evidence was ready and witnesses were present, but certain documents had not been filed and the plaintiff?s pleader refused to produce evidence or to go on with the ease, although he could have done so, because he insisted on the presence of the plaintiff. THE Munsif dismissed it on the merits. 3. It is established satisfactorily that the plaintiff was unable to obtain leave on the 10 December 1917. He had obtained leave on a prior date and been present in Court, in another case, on the 26 November 1917, but on the 10 December 1917 he could not obtain leave. THE learned Munsif refused to give any further adjournments and dismissed the plaintiff's suit on the 10 December 1917 for the following reasons. He said: At the instance of the Commanding Officer, an adjournment was allowed to the plaintiff but he neglected this case altogether. He attended Court in other cases on the 26 November 1917 but did absolutely nothing for this case. He did not even procure copies of certain documents on which he seems to rely. Under the law he should have procured the copies before the filing of the suit or, at any rate, before the date of issue. No further postponement could, therefore, be allowed to the plaintiff for the procuring of the copies of certain documents. His application for adjournment being disallowed, his pleader chose to produce no evidence at all in the case. I, therefore, decide all the issues against the plaintiff. 4. THE learned District Judge upheld this decision in appeal. THE plaintiff comes here in second appeal. He filed his appeal some two years and a half after his suit had been dismissed, but under the provisions of Section 11, Act XII of 1915, his appeal was within time. THE first point which the learned Counsel takes on his behalf is that the whole proceedings of the Munsif were vitiated by his neglect to comply with Section 4, Act XII of 1915. I find that there was no neglect to comply with the provisions of Section 4. THE appellant was certainly an Indian soldier, serving under War conditions, but he was not a soldier who was not represented in the proceeding by a person duly authorised to appear, plead or act on hjs behalf. His pleader never threw up his brief; he refused to produce evidence and continued to attend the case. As the plaintiff was properly represented, the Court was under no obligation to give notice in the prescribed manner to the prescribed authority under Act XII of 1915 and the Court's procedure was perfectly regular and correct. I might, however, have been inclined to stretch a point in favour of the appellant if I thought he had been really prejudiced by the fact that he could not get leave on the 10 December 1917, but I do not consider that he was in any way prejudiced or was any worse off than a Government official or a non-official who finds it inconvenient or impossible to attend a Court on any particular date. Between the 26 June, 1917 and the 10 December 1917 his head-quarters were at Rurki, very of case to Nagina. He appears never to have gone to a very great distance from Rurki. He is certainly a literate man and must be a man of some intelligence judging from the appointment which he holds. He chose of his own accord to institute a suit to obtain property by the exercise of a right of pre emption. He had as good opportunities of obtaining documentary evidence as any body else. He could easily has instructed his pleader by letter. I see no reason of any kind why a point should be stretched in his favour. His suit was rightly dismissed as his pleader refused to go on with it. I therefore dismiss this appeal with costs.