NAWAL KISHORE Vs. AZIM UDDIN

JUDGEMENT

(1.) The plaintiff brought, a suit on the basis of a bond in the Court of the Judge Small Causes at Khurja on 4 July 1933. The Court fixed 25 August 1933, for the hearing of the case. The parties appeared on that date; the defendant filed his written statement and the Court was of the opinion that on the pleas taken by the defendant, the case needed a close inquiry and therefore the case was adjourned for 13 September 1933. It appears that on 4 or 5 September 1933 the plaintiff applied that the date might be changed and the Court on 5 September 1933, ordered that the case should come up for hearing on 9 October 1933. It is clear that the date of hearing was changed from 13 September to 9 October 1933, at the instance of the plaintiff and time was granted to him to produce his evidence on the altered date. The Court could not put the case on 9 October 1933, on account of contested cases and it adjourned the case for the succeeding date. On that date the plaintiff was not present, but his counsel applied for adjournment on the ground of the plaintiff's illness and on the additional ground that one of the witnesses for the plaintiff had to attend the 13 day ceremony of a relation fixed for the 10 October, and therefore could not be present. The Court did not see its way to adjourn the case and observed as follows: Yesterday when the case was postponed for today, it was not said that the plaintiff was ill. It was said for a witness that he was to attend some ceremony and I undertook to release him to day at 10-30 a.m. after recording his evidence. As such the ease called up in the morning at 10- 15 a.m. but for sometime the plaintiff did not turn up with his vakil.... I do not believe in such tactics and regard the application as false. It is rejected.

(2.) The Court then took up the case and after recording the statement of plaintiffs counsel which was to the effect that he had no instructions in the case beyond moving the application for adjournment, dismissed the plaintiff's suit allowing full costs to the defendant. The two pleas taken by the defendant were that the bond was not a genuine bond and that the entire proceedings on behalf of the plaintiff from the filing of the plaint were taken by one Phool Chand and not by the nominal plaintiff. The Court took down the signature of Phool Chand on a paper and then, as I said before, the Court proceeded to write judgment in the case dismissing the plaintiff's suit. In revision it is contended before me that: the suit should not have been dismissed and that there were sufficient grounds for the applicant's non appearance on 10 October 1933.

(3.) Before I proceed to discuss the two pleas taken by the defendant, it is necessary to find out the circumstances under which the plaintiff's suit was dismissed, and to decide whether it was dismissed on the merits or in default. It is contended by learned Counsel for the applicant that the suit was dismissed on the merits, whereas learned Counsel for the defendant says that the suit was dismissed in default and the proper remedy for the plaintiff was to apply for restoration. The plaintiff was present on 25 August 1933, the date fixed for the first final hearing in the case and the provisions of Order 9 by themselves would not apply; those provisions by themselves do not apply to a case in which the plaintiff or defendant has already appeared, but has failed to appear to are adjourned hearing of the case. For such a case the procedure is laid down in Order 17 which deals with adjournments. This was the view taken by the Calcutta High Court in Enatulla Basunia V/s. Jiban Mohan Roy 1914 Cal. 360, and I am in agreement with this view. I have now got to see whether any rule of Order 17 applies to the facts of the present case. Order 17, Rule 1 provides that the Court may grant time to the parties or to any of them, if sufficient cause is shown and it also provides that the Court may from time to time adjourn the hearing on the suit. It follows from this that Order 17, Rule 1 applies both to adjournments made at the instance of a party and to adjournments by the Court of its own motion. In Order 17, Rule 2 certain additions have been made by this Court. The main provision is to the effect that: if on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.