SUNDAR NATH Vs. MALLU

JUDGEMENT

(1.) The first plea taken in revision is that the order of the Munsif dismissing the suit is without jurisdiction. It appears that in the suit out of which this application has arisen an order was passed on the 6th of January, 1916, requiring the personal appearance of the plaintiff on the 9th of February, 1916, That was an order passed under Order V, Rule 3, and the court was within its jurisdiction in requiring the personal appearance of the plaintiff on that date. It is contended that the order was issued in order that the plaintiff might admit or not admit documents filed by the defendant, that it was issued because the vakil for the plaintiff was not able to do this. Further that when on the 9th of February, 1916, the plaintiff s pleader endorsed on the documents the necessary information that order ceased to have any effect. The order did cease to have effect, but not for this reason. There is nothing in the order limiting the personal appearance of the plaintiff to that particular act, but it did cease to exist because there was no order requiring any appearance on any adjourned date. The court should have, on - the 9th of February, made what examination it required of the plaintiff and discharged him from attendance. This habit of the courts below in keeping parties and witnesses hanging about is most reprehensible. It is said that the plaintiff did not appear on that date, i. e., the 9th of February, 1916. In that case the court should have passed the order under Order IX, Rule 12, then and there, or if it were disposed to be lenient to the plaintiff it should have recorded an order for his personal appearance on an adjourned date. There is nothing in the Code requiring plaintiffs and their witnesses to hang about courts pending the pleasure of the court. If they are to appear the law makes provision for securing their appearance, but that is not by the writing of no order of any kind whatever. The case was adjourned to the 28th of February, and on that date the learned Munsif or his office woke up to the omission as to what ought to have been done on the 9th of February, and tried to remedy it.

(2.) The order of the 28th of February, dismissing the case for default of prosecution, was an order passed without jurisdiction; it is set aside and the case is returned to the Munsif of Gorakhpur with directions to admit it on his list of pending cases and to dispose of it according to law.

(3.) This Court would further draw the attention of the learned Munsif to the slovenly and inadequate way in which the order sheet has been prepared. The result was that nearly an hour was wasted while the Court and parties had to conjecture as to what had or had not been done upon the Order Issued to the plaintiff and the witnesses. On this point the order sheet is silent. The steps taken should have been properly recorded.