MT RAM DULARI Vs. BHOLA

JUDGEMENT

(1.) This is a defendant's application against an order passed by the Subordinate Judge of Allahabad, dated 16 August 1934. restoring the plaintiff's suit on condition that the plaintiff should pay Rs. 200 as costs to the defendant. The application is made on the ground that the Court had no jurisdiction to restore the suit which had been dismissed on 10 April 1934. The circumstances which led up to these proceedings are as follows: A. suit was filed in forma pauperis in 1932 by two plaintiffs, Dukhi and Bhola who were father and son. This suit was one relating to property valued at over two lacs of rupees, and it was against the widow of one Bisheshar, deceased, on the ground that the plaintiffs were entitled to the property for reasons with which we are not now concerned. The application to sue in forma pauperis was allowed, issues were struck on 27 April 1933 and the dates fixed for final hearing were December the 4 to 7 1933. In the meanwhile the plaintiff had applied on 15 August 1933 for the appointment of a receiver, but this application was rejected in October. An appeal was made against that order, which is now pending before this Court as F.A.F.O. No. 188 of 1933. In connection with this appeal the record of the suit was sent to the High Court. But on the defendant's application, it was ordered to be sent back to the trial Court in order that the original suit should proceed. On 28th, November both plaintiffs applied for an adjournment of the suit from the date fixed for final disposal, namely, 4th December, on the ground that the record was in the High Court, and other reasons were also given. This application was allowed, and the suit was Adjourned until 9th April 1934.

(2.) In the meanwhile however on 4 December 1933 Dukhi died. His son, Bhola, made an application on the last day allowed him by the law of limitation, namely, 5 March 1934, to be brought on the record in his place as survivor. Notice was issued to the opposite party, but on 5 April the Court passed an order to the effect that as Bhola was the son of Dukhi, all that it was necessary to do was to strike off Dukhi's name so that Bhola could proceed atone in his own right. It may be mentioned that one of the arguments on behalf of the opposite party is that Dukhi and Bhola had sued not, only as a joint family entitled as such, to succeed to the property but also individually as reversioners to Bisheshar. It has been suggested therefore that the Court was wrong in ordering that it was only necessary to strike off the name of Dukhi, because it was also necessary to implead Bhola anew as the representative of Dukhi In his capacity as a reversioner. Bhola made another application on 28 March 1934 for the postponement to the hearing, of the suit. This was refused, but Bhola made another application on 7 April 1934, which was ordered to be put up on the date fixed for the hearing of the suit.

(3.) On that date - the 9 April - the plaintiff's advocate appeared and filed an application for the further postponement of the proceeding. This was-rejected, and the advocate stated that he had no further instructions. It should be mentioned that the application was signed not only by the advocate, but by the plaintiff, Bhola, himself. The order on the order sheet was. that the case should be put up on the following day for delivery of judgment and on the following day the Court passed an order in the following form. First the cases of the parties were stated at length and the issues were given in detail. The order then proceeds: Findings : In December 1933, plaintiff 1 died leaving his son, plaintiff 2, as the sole survivor. Owing to the death of plaintiff 1, hearing fixed for 4 December 1933 was adjourned to 9 April 1934. The plaintiff asked for adjournment to 9 April 1934. The plaintiff asked for adjournment again, which was refused. The plaintiff and his counsel then absented. The contesting defendant has brought three counsel practising in the High Court, including Dr. Asthana. The case is dismissed for default with costs of the contesting defendant.