ESMAIL EBRAHIM Vs. HAJI JAN MAHOMED

JUDGEMENT

(1.) This case raises a point, which, having regard to the way, we know, business is sometimes done in these Courts, is a matter of some importance.

(2.) The plaintiff filed the suit to recover a large sum of money, from the defendant, and at the time of the hearing, when the case was called on, neither of his counsel was present. However, to enable them to come and appear, defendant's Counsel raised twenty-two issues. At the end of that time, I announced, that I would give a limited time-I think I said five minutes-: for the plaintiff to appear, of course meaning thereby obviously, I either by himself or by his counsel. Then another counsel got up I and said he was instructed to apply for an adjournment but was not instructed on the hearing, and I refused the adjournment. The plaintiff's counsel did not turn up within the five minutes-in fact he did not turn up till nearly about twenty minutes later- and accordingly I dismissed the suit.

(3.) Now, it is admitted that this is an application under Section 103 of the Civil Procedure Code for the restoration of the suit and it is necessary to see what the section says. The material portion of the section is : But the plaintiff may apply for an order to set the dismissal aside; and if it be proved that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the dismissal upon such terms" etc.