DALARUDDIN HALDAR Vs. DEOLAR BUN MOLLA

JUDGEMENT

(1.) THIS Rule has been issued on the ground that the learned Small Cause Court Judge was not justified in law in dismissing the plaintiff's suit. The plaintiff's suite was filed on the 24th January, 1923 and there were no less than 10 days fixed for the hearing of the suit which was postponed on the application of either party or of both. The last adjournment was on the application of the plaintiffs. On the 25 June, the plaintiffs again applied for adjournment. The order was to the following effect: "Plaintiff is directed to pay Rs. 5 as costs to the defendant." On the same date, probably later in the day, the following order was passed: "No costs paid. The plaintiff's petition is rejected. The suit is dismissed with costs." It is curious that, when the Court directed the plaintiff to pay Rs. 5 as coats, apparently for the adjournment he had prayed for, no further date was fixed for the hearing of the case. The order as it stands looks as if the Court fined the plaintiff Rs. 5, for asking for the adjournment. Be that as it may, the Court was not right in dismissing the plaintiff's petition for adjournment because he could not pay the costs on the day the order was passed. The plaintiff ought to have been given sufficient time and opportunity to produce the money. It is not expected that litigants should always come to Court with sufficient money to meet all unforeseen contingencies. In this connection, reference may be made to the case of Dhanuram Mahto V/s. Murali Mahto (1909) 36 Cal. 566. There it is suggested that no doubt the Court has power under Section 156 of the Code of 1882 to make orders for adjournment conditional upon payment of costs; at the same time, the Court in adjourning a case to a subsequent day should make the hearing on that day conditional upon payment of costs before that date.

(2.) THE result is that this Rule is made absolute, the order of the Small Cause Court Judge dated the 25 June, 1923, dismissing the plaintiff's suit for default is set aside; and it is directed that he should hear the case according to law. THE opposite party has not entered appearance. THE petitioner is entitled to costs. I assess the hearing fee at one gold mohur.