BASAYYA AYAPPA SARGHNACHAYAR Vs. ALLAYYA MAHARUDRAYYA GANACHARI

JUDGEMENT

(1.) This suit was originally fixed before the trial Court for hearing on November 2, 1922. On that date the plaintiffs pleader asked for an adjournment undertaking to produce his witnesses without summonses. The Court granted an adjournment till November 30, 1922. On November 30, the case was called on but the plaintiff was absent. The Court instead of making an order under Order XVII, Rule 2, proceeded under Rule 3 to decide the suit and rejected the plaintiff's claim with costs.

(2.) On appeal the District Judge was of opinion that that order was wrong, but he considered the appeal before him on its merits holding that the plaintiff had not shown sufficient cause for his non-attendance on November 30. But if the proper order had been made by the trial Judge under Order XVII, Rule 2, it would be the trial Judge who would have to decide on the application to restore the suit to the board, whether the plaintiff had sufficient cause for his non-attendance; so we do not think that the decision of the District Judge on that question is one which was competent. As the initial order was wrong, the appellant was entitled to be heard on the question of his non-appearance by the trial Court. We think, therefore, that the suit should be restored to the board on the appellant's first paying all costs which have been incurred by the 1 defendant up to date.

(3.) These costs should be paid within one month after the proceedings have been returned to the trial Court.