SWORUP MANUAL AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES PANCHORAM MANDAL Vs. AYAN RAI KOWRA AND ON HIS DEATH TWO OF HIS HEIRS AND LEGAL REPRESENTATIVES DURGA ROY KOWRA

JUDGEMENT

(1.) This appeal is preferred by the defendant against the decision of the learned Subordinate Judge of Khulna, dated the 16th November 1916, affirming the decision of the second Munsif of the same place. The suit was brought for the purpose of establishing the plaintiff s title and recovery of possession of certain land. The question raised at the hearing of the present appeal has nothing to do with the merits of the case at all. The point taken is this; on the 9th September 1915, the trial of the case was proceeding in the Court of first instance and late in the afternoon--although I am told by my learned colleague that it is common in the Court of the Munsif--the plaintiff s case was closed as regards evidence and the case of the defendant was reached. According to the statement of the learned Vakil for the appellant, one of the junior Pleaders who had been engaged by the defendant had left the Court at that time for the purpose of attending a certain revenue case. I do not know why the junior Pleader should leave this case to attend a certain revenue case. But he left it in the charge, so I gather, of a gentleman called Mr. Biswambhar Nandi, who is a senior Pleader practising in the Courts there. The case being called on, Mr. Nandi, according to the record, expressed his inability to go on with the case at that time, and he having expressed his inability to go on with the case, the defendant was told that he should examine his witnesses himself, whereupon he said that he could not. Upon this the Munsif declared the evidence closed and fixed the next morning for the argument of the case. The next morning, the Munsif was asked to vary the order made on the previous day and allow the defendant not only to examine the two witnesses said to have been present in the Court premises on the 9th September, but to examine also three additional witnesses who were not present on the previous day. The Court refused that application and proceeded to adjudicate on the case. An appeal was then preferred to the Court of the Subordinate Judge, and the learned Subordinate Judge upheld the view taken by the Munsif. The present case comes before us in second appeal, and we are asked to interfere with the discretion of two Judges who knew the circumstances of the case and before whom evidence could be given as to the illness of Mr. Nandi. Mr. Nandi presumably is a regular practitioner before these two learned Judges and I have no doubt that if he had in. formed the Judges what the nature of his complaint was and if they were satisfied that his illness was of the nature that is suggested before us, they would have given their best consideration to it. The fact that Mr. Nandi was attacked in the Court of the Munsif suddenly by illness would have been known to the learned Munsif himself. On the record there seems to be nothing except the petition preferred to the Munsif as to the illness of Mr. Nandi. The grounds of appeal to the lower Appellate Court stated that the Pleaders of the defendant were attacked with illness and that one of them left the Court at 2 o olook and the other one was unable to continue the case at 5-45 p. m. That Dr. Jadu nath Kanjilal says is a slip. At the same time neither the defendant nor any one else has come forward with an affidavit or otherwise stating that Mr. Biswambhar Nandi was attacked with a certain illness at 5-45 p. m. on the 9th September 1915, and was, therefore, unable to proceed with the case. If such had been the fact, no doubt it would have been stated by Mr. Nandi to the Munsif that he felt unwell and was unable to go on with the case and the Munsif would have adjourned the case.

(2.) Then we are asked that we should adjourn the case in order to get Mr. Nandi to file an affidavit that, at 5.45 p.m. on the 9th September 1915 he felt unwell and was unable to proceed with the case, which was valued at Rs. 54. I do not think we should invite Mr. Nandi to put himself in that position. We are told by Dr. Kanjilal that he is a Pleader of considerable practice and to invite him to recollect in a case valued at Rs. 54 only instituted in the Court of the second Munsif at Khulna that he suddenly fell in at 5-45 p. m. on the 9th September 1915, would be, I think, putting an undue pressure on his recollection. There were ample opportunities .in the lower Courts and before this to obtain from Mr. Nandi his own statement as to what, in fact, did happen, and having regard to the view of the two learned Judges of the Courts below, I do not think that we should interfere in a case of this nature even if we had the jurisdiction, which it must not be taken that I assent to, on the ground that it has been established that the case of the defendant was closed owing to the unfortunate illness of his Pleader Mr. Nandi. the appeal fails and must be dismissed with costs. Cuming, J.

(3.) I agree.