CHOWDHURANI Vs. PROMODA SUNDARI RAI CHOWDHURANI

JUDGEMENT

(1.) This is an application under Section 115, Civil Procedure Code, by the plaintiff in a title suit. The plaintiff's case is that in June, 1931, the plaintiff instituted a suit against the defendants for declaration of her title to a plot of land with huts thereon and for recovery of possession of the same, that defendants Nos. 1 and 2, mother and son, entered appearance, filed their written statement on August 15, 1931, and thereafter the suit went on for a long time on adjournments till on April 26, 1932, the Court warned the parties to come ready on the next date when the case would be positively heard and the next date fixed was June 8, 1932; that on June 8, 1932, the plaintiff was ready with her witnesses and defendant No. 2 along with his junior Pleader was present but they did not file any list of witnesses, although some of the defence witnesses themselves filed their hajiras; the defence prayed for one day's time on the ground that their senior Pleader was engaged at Dacca and would not be able to come till 3 p.M. The learned Munsif-rejected the prayer fqr a day's adjournment bat adjourned the hearing till 2 p.m. There after at 2 p.m. on that day the case was taken up and one witness for the plaintiff was examined. The defendants were asked to crossexamine the witness, but the Pleader declined to cross examine and, filed a petition praying for ah adjournment till the following day. The Court refused the praj er for adjournment and examined another witness apd decreed the suit ex parte. On the following day a petition was filed on behaltof the defence praying that the order of the previous day might be set aside and the suit restored for fresh hearing.

(2.) After hearing ?he parties, the learned Munsif by his order dated November 30, 1932, set aside the order of June 8 and restored the suit for fresh hearing. The Munsif look his action under Order XLVII, Rule 1, Civil Procedure Code on the ground that the Court had committeed an error apparent on the face of the record inasmuch as the Court in passing the judgment did not take into CDnsideratidn the evidence which had been taken on commission and which was upon the record. The Court considered that the order passed was under Order XVII, Rule 3, Civil Procedure Code. It is urged by the learned Advocate for the petitioner that the order of the Court was passed not under Order XVII, Rule 3 but under Order XVII, Rule 2 and as such the Court was not justified in reviewing the said order; but the defendants might have filed a case under Order IX, Rule 13 if they had been able to show that they had a sufficient cause for default; and in the second place it is urged that even if it be considered that the case was under Order XVII, Rule 3 the learned Munsif acted illegally in allowing the case to be restored.

(3.) Upon hearing the learned Advocates on both sides who have placed the entire record before the Court, it appears that in fact the learned Munsif passed an order on June 8, 1932, under Order XVII, Rule 2; but when the review application was filed, heiconsidered, he dealt with the case under Order XVII, Rule 3, and even when he dealt with the matter under Order XVII, Rule 3, it does not appear that the defendants were justified in asking for review. Their action should have been taken uiider Order IX, Rule 13, see Kristo Kishore Bose V/s. Pancharam Maity , where Sir George Rankin the learned Chief Justice, has explained the matter very fully. In the next place assuming that ihe order passed by the Munsif was under Order XVIL, Rule 3, it is to be considered whether he was right or committed an error apparent on the face of the record in not accepting the evidence taken on commission. On this point it is urged on the side of the petitioner, that under the provision of Order XXVI, Rule 8 the evidence taken on commission shall not be read as evidence in a suit without the consent of the party against whom the same is offered unless such conditions are fulfilled. It is clear, therefore, that the evidence taken on commission does not ipso facto become an evidence in a case. It has to be offered by the party who has examined the witness on commission and it, has to be accepted by the Court after hearing the opposite party and unless it is tendered by the party and accepted by the Court it is not to be considered as evidence in the case: see the case in Kristo Kishore Base V/s. Pancharam Maity 111 Ind.Casa. 430 : A.I.R. 1928 Cal. 348 : 47 C.L.J. 467, already referred to and also the:caseof Mahim Chandra Guha V/s. Naba Chandra .