BANSHI DEWAN Vs. MAJAHARUDDIN TALUKDAR

JUDGEMENT

(1.) In this case the defendants appeal from an order of the learned Subordinate Judge of Rajshahi whereby be reversed an order of the Munsif of Naogaon. It appears that the plaintiff brought two rent suits against different defendants, that in April 1925 these suits were decreed by the trial Court, that appeals were brought to the Subordinate Judge against the decrees and that on 14 February 1927, the Subordinate Judge first of all allowed the appeals, set aside the decrees and remanded the cases for fresh trial on the lines laid down by his judgment upon payment of Rs. 15 in each case for costs by the plaintiff to the defendants. His order went on to say: If this cost is not paid within two months from the date of arrival of the record in the original Court, the suit shall be dismissed. If this costs is timely paid, then there shall be a retrial.

(2.) It seems that the record was not received in the trial Court until 8 April 1927. Two months elapsed without the plaintiff paying the Rs. 15, but on 27 June Rs. 15 was deposited in Court in each case. That payment was made under an order to which the defendants were not parties. The plaintiff applied to the trial Court and he called the attention of the trial Court to the fact that he was out of time. The trial Court took the view that there was some excuse for being out of time and that the clerk in the office ought to have drawn the attention of the plaintiff's pleader at the time when the record was received back by the trial Court. It therefore made the order that the plaintiff should be allowed to deposit the money and it was deposited and the fact of the deposit was a few days afterwards brought to the notice of the pleader for the defendants. From time to time the question of rehearing of the suits was on the trial Court's list and the hearing was adjourned-until some time in June 1928, In the meantime the Rs. 15 for costs was lying in the trial Court and it appears that on 18th November 1927, the pleader for the defendants got an order entitling him to take it out, and just a few days before the hearing was coming on, another order was made enabling the money to be returned by the defendants at their own risk. This incident of taking out and returning was in one of the two suits before us only and not in the other.

(3.) In these circumstances the learned Munsif, when the matter came before him on remand, held that the condition upon which alone the retrial was directed had not been complied with, that he had no jurisdiction to proceed with the rehearing of the suits, that the order allowing the costs to be deposited had done no harm in itself but it certainly could not amount to a valid order having regard to the terms upon which the retrial was directed. That matter came on appeal before the learned Subordinate Judge who took another view. He appears to have considered the original order of 14 February 1927, as a direction to the Court below would dismiss the suits if something was not done. He also considered that the fact that the return of the record was not brought to the notice of the plaintiff's pleader was an almost complete excuse for the plaintiff's pleader and the plaintiff for not complying with the term of the order. He therefore directed the trial Court to proceed with the hearing of the suits. From that order the present appeals have been brought. The first question is as to the meaning of the order of 14 February: If this cost is not paid within two months from the date of arrival of the record in the original Court, the suit shall be dismissed this cost is timely paid, then there shall be a retrial.