DEBRANI DEBYA Vs. KUMAR SARAT KUMAR ROY

JUDGEMENT

(1.) The facts which have given rise to the present Rule shortly stated are these. The petitioner is the purchaser of a certain holding in respect of which there was subsequently a decree for rent against the petitioner's vendor inasmuch as the petitioner had not got her name registered in the zamindar's sheristha. In execution of that decree for rent the holding was sold in auction. The petitioner's case is that, in order to get the sale set aside, she made over the amount recoverable under the decree together with costs and other expenses to the judgment-debtor in order that the same might be deposited in Court for payment to the decree-holder and the auction-purchaser in accordance with the provisions of Section 174 of the Bengal Tenancy Act and that this deposit was duly made by the judgment-debtor himself; but that subsequently the judgment-bebtor put in a petition stating that he had nothing to do with the deposit and, in consequence, the application to set aside the sale was rejected. The petitioner thereafter put in a petition stating all these facts and praying that, in the circumstances, the sale might be set aside. The matter was adjourned from time to the till the 30 June 1923, that, when it was taken up on that day, an application for time by the petitioner on the ground that her witnesses were not present was made but was refused, and the case was dismissed in the absence of the petitioner. Against this order, an appeal was preferred by the petitioner to the District Judge and the learned District Judge being of opinion that there were no merits in the appeal apart from the question whether there was really a right of appeal or not which seemed to him to be doubtful, dismissed the appeal. Thereafter, the petitioner moved this Court and obtained the present Rule.

(2.) In support of the contention that an appeal did lie against the order passed by the Munsiff, reliance has been placed upon the case of Kali Kanta Chuckerbutty V/s. Shyam Lal Das Basu [1916] 25 C.L.J. 163. For the opposite view, reliance has been placed upon the decisions in the case of Jung Bahadur V/s. Mohadeo Prosad [1903] 31 Cal. 207. In my opinion, none of these cases applies to the present case, and I am of opinion that, no appeal lay against the Munsiff's decision. I propose, therefore, to deal with that decision under the provisions of Section 115 Civil Procedure Code, and Section 107 of the Government of India Act, 1915.

(3.) There is considerable substance in what has been urged on behalf of the opposite party to the effect that the petitioner was not very diligent in the prosecution of the application which she filed before the Munsiff. It would appear that, on no less than three occasions, time was taken by the petitioner on some ground or other in order that she might be ready for substantiating the allegations which she had made in her petition. On the last of those occasions, however, that is to say, on the 30 June 1923, what actually happened was this. An application was filed on behalf of the petitioner stating that her witnesses were not ready and asking for an adjournment on that ground. The order passed by the learned Munsiff on that application was this : "Opposite party ready again. Petitioner's prayer for time is rejected. She is directed to be ready at once." The next order passed on the same day runs thus. "Petitioner absent on call. No steps taken on her behalf. It appears that the application is not maintainable under the sections mentioned Ordered. This application is rejected in the presence of the opposite party and for the default of the petitioner. Opposite party will get costs." Now, the petitioner states that, after the rejection of her application for adjournment, the person who was looking after the case on her behalf waited in Court and then left it under a misapprehension that the case would not be taken up that day but that hereafter at a late hour, namely, at 5-30 p.m. when her pleader had left the Court, the case was taken up and dismissed by the Munsiff as aforesaid. With reference to this allegation, there is no affidavit tiled on behalf of the opposite party challenging its correctness. I am, therefore, disposed to hold that the petitioner was not given a proper opportunity of representing her case before the Court. In that view of the matter, I would set aside the decision of the learned District Judge dated the 5 October 1923, and that of the learned Munsif referred to above and direct that the petitioner be given an opportunity of substantiating the case which she put forward in her original application. Having regard, however, to the fact that she was not very diligent in the prosecution of her application, I would make it a condition precedent to the hearing of the case that she do pay to the opposite party the costs which have been awarded to him by the order of the Munsiff dated the 3 July, 1923, and also the costs of this Rule the hearing fee of which I assess at one gold mohur within one month of the arrival of the record in the primary Court. If these costs are not paid within the time aforesaid, this Rule will stand discharged with costs hearing fee one gold mohur. When the matter is re-opened before the learned Munsiff, both parties will be at liberty to adduce evidence.