SRI NATH Vs. MATA PRASAD

JUDGEMENT

(1.) This is an application for the revision of an appellate order of the Subordinate judge of Mirzapur, upholding the decision of the trial Court. A preliminary objection has been raised that the provisions of Section 115, Civil P.C., will not cover such a case as the present. The circumstances areas follows:

(2.) The plaintiff-applicant sued one Lachhu Ram in the Munsif's Court, and 27th April 1932, was fixed for issues. There were adjournments, first on the application of the defendant and then on that of the plaintiff until 11 July for which date the plaintiff summoned eight witnesses, but one of his witnesses, Ram Sagar, was unserved. The plaintiff however intimated that he was ready to go on with the case, but the defendant made an objection on the ground that all the witnesses should be heard on one day, and on this the plaintiff also asked for an adjournment with the result that the hearing was postponed until 17 August, far which date both parties summoned witnesses. On this again Ram Sagar was not present, though he had been summoned, and another witness, Mahadeo Prasad wais stated to be in jail. The plaintiff therefore made an application to the Court to issue a commission to examine Ram Sagar, and this was allowed. On 16th September 1932, the plaintiff applied that the defendant had died, and that his heirs might be brought on to the record. The heirs were impleaded, and 13th February 1933, was fixed for fresh issues and 19 April for final disposal.

(3.) In the meanwhile proceedings had been taken for the issue of a commission for the examination of the witness Ram Sagar, and 12 April, had been fixed by the Commissioner for this purpose. On 11 April, however the plaintiff made an application to the Court of the Munisif, in which he stated that. Ram Sagar had gone from Calcutta to Rangoon. At the same time the plaintiff applied for Summoning his other witnesses, all of whom were local, men, but he mentioned that Mahadeo Prasad, the witness who had previously been in jail, had been arrested the day before the application. The Munsif did not record any order granting an adjournment of the hearing, but it does appear that he sent a telegram to the Commissioner. We do not know how the telegram was worded, but we do know that in reply the Commissioner sent a letter to the Court dated 1st May, saying that he had fixed 21 May, for the recording of the, evidence of Ram Sagar. The case was however taken up by the Munsif on 19 April, and was disposed of by him on the merits apparently under Order 17, Rule 3. An appeal was made by the plaintiff to the Subordinate Judge partly on the ground that Order 17, Rule 3, did not apply, and partly on the merits, namely, that an adjournment should have been allowed. The lower appellate Court however found that the suit had been adjourned more than once on the plaintiff's request, that the plaintiff had had seven, weeks at his disposal to be ready, with his evidence since 13th. February 1933, and that therefore no good cause for adjournment was shown.