KAZIMADDI SARDAR Vs. MAKRAMALI MOLLA

JUDGEMENT

(1.) The petitioners in this case, having lost in proceedings under Section 145, Criminal P.C., instituted three suits for declaration of title to and possession of certain char lands. The suits were registered on 3 October 1931. On 22 April, 1932 the petitioners applied for local investigation which was held by a commissioner and he submitted his report about two years later. The suits were then fixed for hearing on 26 April 1934. Thereafter adjournments took place on the ground of the Court being engaged in Sessions. Mean-while, the petitioners applied for summons on witnesses who were residing at various places. On 6 August 1934 the petitioners and some of their witnesses filed certain documents to be used as evidence in the cases. On that date the petitioners applied for time and the suits were adjourned to 4th September 1934. Meanwhile on 24 June 1934 the petitioners pleader died and a new pleader was engaged. On 22 August, 1934 the suits were transferred to the Second Court of the Subordinate Judge who directed that the hearing should be taken up on 4 September 1934. According to the petitioners this order was not communicated to them, but the petitioner, Nayan Sarif Sardar, having come to Faridpur on 1 September came to know that the hearing date was fixed on 4 September. It is stated that the petitioners found it impossible to procure the attendance of witnesses and specially the officers of the Court of Wards who were summoned were unable to attend as they were engaged in a partition case elsewhere. According to the petitioners these officers were very material witnesses. On 4th September the petitioners applied for adjournment on this ground. They made two applications but both were dismissed. The Subordinate Judge could not however take up the cases on that date, so he adjourned them to the following day. On 5 September the petitioners filed another application for adjournment but this was also refused. The suits were then taken up for hearing. But, as the petitioners pleader had no further instructions, they were dismissed for default. Thereafter the petitioners filed applications under Order 9, Rule 9, Civil P.C., but these were dismissed and the dismissal was affirmed on appeal by the District Judge by his order dated 30 January 1936. Against these orders the present rules have been obtained.

(2.) There is no doubt that upon the facts stated above the petitioners case would appear to be a hard one. They had already taken various steps in order to bring the suits to a hearing. They had filed documents, cited witnesses and paid a large sum as costs of the local investigation. The Courts below based their decisions on the findings that it was not proved that a telegram had not been sent to the petitioners informing them of the hearing and that one Abdul Gani had told them that the case would not be taken up on account of the Subordinate Judge being engaged in Sessions. It is quite possible that no telegram was sent at all and that there was some negligence on account of a new pleader being engaged. But in any case it seems that the learned Judge omitted to consider the very material fact that the petitioners had cited certain witnesses, specially the officers of the Court of Wards, who were unable to be present, so that even though the petitioners appeared on 4 September, they were not in a position to go on with the hearing. Further it seems that the commissioner's report was already on the record and the plaintiffs have also filed certain documents and time had been granted to the plaintiffs to produce further evidence. On the plaintiffs failing to produce such evidence at the date of the hearing on 5 September 1934, the Court might have proceeded to decide the suits under Rule 3, Order 17, but instead of doing that the Court chose to dispose of the suits under Rule 2 of Order 17, thereby depriving the plaintiffs of a right of appeal, In these circumstances I think the learned Judge exercised his jurisdiction wrongly in dismissing the plaintiffs application under Order 9, Rule 9, Civil P. C, and affirming the decision dismissing the suits for default. The orders of dismissal complained against must be set aside and the suits must be re-heard. The rules are made absolute. There will be no order as to costs. Nasim Ali, J.

(3.) I agree. But I would like to add a few words in connexion with fixing of dates for peremptory hearing. The word peremptory does not appear in the Civil P. C.. It is true that old cases should be heard as early as possible but that does not mean that the parties should not be given sufficient opportunity to place their evidence before the Court. It is desirable that before fixing a peremptory date for the hearing of a suit, the Court should hear the parties in order to enable the parties to inform the Court what time would be necessary for enabling them to be ready with their evidence. The practice of first fixing a peremptory date without hearing the parties and then informing them through their pleaders would not generally further the ends of justice.