SHIAM SUNDAR LAL Vs. SHIB RAM

JUDGEMENT

(1.) This a plaintiff's appeal arising out of a suit on the basis of a mortgage-deed. The plaintiff was a minor and the suit was instituted by his mother acting as his next friend. After the issues had been framed, the 14 of April, 1926, was fixed for the filing of a list of witnesses, but on that date the suit was transferred to the Court of another Munsif, who fixed the 10 of May, 1926, for final decision. When the case was called on for hearing on that date an application signed by the next friend's mukhtar-i-am and countersigned by the plaintiff's Pleader was filed in the Court praying for an adjournment on the ground that the mukhtar-i-am bad been continuously ill for about a month and had not been able to summon the witnesses. The learned Munsif thought that this ground was a mere lame excuse and rejected the application. After that order that plaintiff's Pleader stated that he had no instructions to proceed with the case other than to file the aforesaid application for adjournment. After this statement of the Pleader the Court passed the following order: The plaintiff is absent and his Pleader has no instructions. Ordered that the suit be dismissed for default and with costs, if any.

(2.) Instead of filing an application to have the suit restored, the plaintiff was advised to file an appeal before the District Judge. The appeal was filed on the 9th of June, 1926, which would be just within 30 days of the dismissal of the suit. The learned District Judge has dismissed the appeal holding that no appeal lay to him, inasmuch as the order was one of dismissal for default and did not amount to a decree. A second appeal has been preferred to this Court challenging this view.

(3.) The order was passed by the learned Munsif at a time when the explanation added to Order XVII, Rule 3 by this High Court did not exist. Under the law as it then stood it was quite obvious that if the Pleader after the rejection of the application for adjournment withdrew from the case, stating that he had no further instruction to proceed with it, there was really no appearance of the plaintiff by a Pleader duly instructed and enabled to answer all material questions relating to the suit within the meaning of Order V, Rule 1(2b). The learned Munsif himself treated the proceedings as on default of appearance and passed his order accordingly. We are unable to hold that the view taken by him and the Appellate Court about these proceedings was in any way wrong.