NAGENDRA KUMAR BOSE Vs. NABIN MANDAL

JUDGEMENT

(1.) In this case the plaintiffs on the 19 December 1906 brought a suit against the defendants in the Court of the Munsif of Basirhat. The 22 January, was fixed for the hearing of the case. On that date the defendant prayed for time and the case was adjourned to the 19 February. The 19 February being a holiday the case was taken up on the 25th February, when it was again adjourned to the 5 March. On the 5 March the following order was passed: "The defendants do not appear; examined Kali Krishna Chandra and decreed ex parte." Subsequently the defendants applied to have this decree set aside under Section 108 of the Civil Procedure Code, and that application was ultimately granted.

(2.) The plaintiffs now apply to this Court under Section 622 of the Civil P. C., and ask that the order of the Munsif reviving the case may be set aside on two grounds. The first ground is that the order of the 5 March 1907 is really an order under Section 158 of the Civil P. C. and therefore cannot be set aside on an application under Section 108 of the Civil P. C.. It appears to us that the case is completely governed by the general principles laid down in the cases of Mariannissa V/s. Ramkalpa Gorain 34 C. 235. and G.P. Cooke V/s. The Equitable Coal Co. Ld. 8 C.W.N. 621. It seems to us that the Court did not, as a matter of fact, on the 5 March 1907, dispose of the case under Section 158 of the Code of Civil Procedure. That section authorises the Court to proceed to decide a suit forthwith. But in this case the Court did not decide the case forthwith, but proceeded to take evidence and decided the case on the evidence so taken. We have been referred to the case of Sitara Begam V/s. Tulshi Singh 23 A. 462, as an authority for the proposition that the Court may, under Section 158 of the Civil P. C., take further evidence and decide the case on that evidence. But after reading the decision we do not think that this conclusion follows necessarily from the terms of the judgment. We think, therefore, that the first point fails, and hold that the order of the 5 March 1907 was passed under Section 100 read with Section 157 of the Civil Procedure Code, and could be set aside by an application under Section 108.

(3.) The second point taken is that the order of the Munsif reviving the case is bad under Section 108 of the Civil P. C., inasmuch as the Munsif has not found that the defendants were prevented by sufficient cause from appearing on the day fixed. It is impossible to deny that the enquiry made by the Munsif into the matter was perfunctory and the order passed very defective and irregular in form. But it appears on examining the proceedings that that order was an ex parte order. The case under Section 108 was taken up on the 20 February, 21 March and the 11 April. On none of these days were the plaintiffs ready to proceed with the case. The order of the 21 March directed the issue of summonses on the plaintiff's witnesses at their own risk and so conveyed to them a fair warning that further time would not be given. Then on the 11 April the plaintiffs applied for further time and their application being refused, one of the defendants was examined. The plaintiffs apparently did not cross-examine him and acting on the statement of one of the defendants that he had never heard of the decree, until it was executed, the Munsif directed the restoration of the suit and a trial de novo. Although, as we have said, we cannot regard the order of the Munsif as in form a proper order, yet we do not think that we ought, in the exercise of the discretion given us by Section 622 of the Civil P. C. to interfere with it.