M LIAQAT HUSAIN Vs. VINAY PRAKASH

JUDGEMENT

(1.) This is an application under Section 115, Civil P.C., against an order of the learned Additional District Judge of Moradabad affirming in substance the complaint made by the learned Munsif under Section 193, Indian Penal Code. The facts cover a long period and are somewhat involved. Briefly they are these : On 15th August 1931 Shiam Sunder and Ram Chander executed a promissory note in favour of a man named Bhagwan Chand. Bhagwan Chand died and his two sons, Vinay Prakash and Krishna Prakash, brought a suit on its basis on 8 August; 1939. It was alleged that the promissory note had been kept alive by certain acknowledgments. The claim was made for a sum of Rs. 2140 after giving credit for Rs. 203. For 13 September 1939 the hearing of the case was fixed and on that day, at the request of the defendant, the case was adjourned conditional on his payment of a sum of Rs. 21. 26 September 1939 was fixed for filing the written statement and 10 October was fixed for the settlement of issues. On 30 September 1939 the written statement was filed, but it was struck off. It might be mentioned that there was a plea in the written statement that the payment of Rs. 450 was made towards a partial discharge of the debt. On 10 October 1939 issues were settled and the statement of Shiam Sunder was recorded. It is this statement which forms the basis of the subsequent proceedings. To the precise terms of the statement we shall come a little later. On the same day an ex parte decree was passed and the defendant challenged this by means of an appeal.

(2.) There is another chapter in this litigation which might also be mentioned. Against the order striking off the defence there was an appeal to the District Judge. The appeal was allowed and the case was sent back. The defendant applied for a refund of the court-fee but this prayer was refused. He came in revision against it. This application for revision was allowed by a learned Judge of this Court on 25 September 1941. The record of the case remained in this Court after the presentation of the application in revision up to at least 24 February 1942. After the remand the case was taken up on 6 August 1940. Shiam Sunder was examined and so was a witness on his behalf, namely, Liaqat Husain. On 7th August 1940 an application to withdraw the plea of payment embodied in the written statement was made by Shiam Sunder. On 9 August 1940 the suit was decreed. On 14 December 1940, two applications were made against Shiam Sunder and one against Liaqat Husain by Vinay Prakash and Krishna Prakash. praying that proceedings under Section 476 be started against both. The applications against Shiam Sunder were treated as one Misc. case No. 75 and that against Liaqat Husain as Misc. case No. 76. It is significant that on this date the record was made in this Court and a prayer was made on behalf of the plaintiffs for the adjournment of the case till the return of the record from this Court. This prayer was granted. On 24 January 1941, there was another adjournment up to 22 March, 1941. On 10 February 1941 Shiam Sunder made an application very much to the same effect. On 18 March 1941 another application was made by the plaintiffs for the consolidation of the two Misc. cases Nos. 75 and 76. Various adjournments, inconsequence of the presence of the record in this Court, were made till we come today, 13 September 1941. When the case was taken up on 13 September 1941 it was found that the record was still in this Court and the plaintiff was given an opportunity to furnish the information regarding the number and date of the application in revision. This was done and 6 December was the next date fixed. On 5 December 1941, however, the defendant applied that the case should be taken up. The case was taken on 6 December 1941. The order of 13 September 1941 must be reproduced in extenso: Because the counsel for the applicant has not been able to tell the Court the number of the appeal (revision) pending in the High Court therefore it is ordered that the counsel should be informed that the case (No. 76) will be taken up on that date, 6 December 1941.

(3.) We find in the order-sheet the following entry on 6 December 1941: The case was taken up to-day. The counsel for the parties are present. The statement of Raj Kumar (Bahadur) was recorded. On behalf of the applicant two papers were produced in support of his case. The counsel for the parties have been heard. Let a complaint against Shiam Sunder and Liaqat Husain under Section 193, Indian Penal Code, be made to the District Magistrate and a copy of the judgment be placed on the record of Misc. Case No. 76 of 1940.