MAHANT NARAIN DAS Vs. MADAN MOHAN

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit has been dismissed by the Court below under Order 17, Rule 3, Civil P.C. The suit was for possession of a temple, called the temple of Sri Gopalji Maharaj, situated in Brindaban, together, with the properties appertaining thereto and for the declaration that the plaintiff, was duly appointed mahant of the temple and that defendant 1 was not entitled to the office of mahant. The defendant, Madan Mohan, denied that there was any gaddi or that there was any mahant. He pleaded that one Salig Ram had dedicated his personal properties to an idol installed in that temple and that the only office connected with the temple was that of shebait or pujari. The plaintiff claimed by succession to one Gokul Das who died, according to para. 12 of the plaint, in the year 1926. The suit was filed on 2 December, 1935, more than 9 years after the accrual of the alleged right of the plaintiff. The case came up on 11 January 1937 and on an application made by the defendant the date for final hearing was altered to 8 February 1937. On 5 February 1937, an order was passed by the Court below stating that 8 February 1937 had been declared a holiday and that the case be fixed for 1 March 1937 for final hearing. On 16 February 1937 both the parties made a joint application which is as follows: In the above-mentioned suit it is submitted that the Court had fixed 5 February, 1937 for hearing in this suit but owing to the assembly elections the said date was declared as a holiday. Hence the parties did not get the witnesses summoned for that day. The Court has now fixed 1 March 1937 for hearing. The parties have to summon witnesses from out stations and they cannot be summoned to appear by the said date. It is therefore prayed that some other date after March 1937 may be fixed so that the parties may have sufficient time to summon and produce witnesses.

(2.) On this the Court passed an order on the same date in these words: "Date altered to 15 March, at the request of parties." The plaintiff did nothing for over a fort, night and it was only on 4 March 1937 that he made an application for summoning three witnesses. On 11 March 1937, only four days before the date fixed for the final hearing of the case and for the production of evidence for which time had been granted to both parties, the plaintiff filed another application for summoning fourteen witnesses. On 15 March 1937, a telegram despatched from Jaipur was received by the learned Additional Civil Judge who was seized of the case purporting to be from the plaintiff. It appears that the plaintiff had engaged two counsel, Pandit Kumar Krishna and Pandit Eadha Krishna Sharma, to appear, act and plead for him. When the case was called on for hearing, the counsel for the plaintiff stated that they had no instructions. They contented themselves merely with this statement and made no further application or statement. No reason was given for the failure to proceed with the case. It does not appear why the learned Counsel could not examine the witnesses that had been summoned and why it was necessary that the plain, tiff himself should be present. The Court below thereupon took up the case and recorded such evidence as was produced on behalf of the defendant. It also perused the documentary evidence filed by the defendant. The pairokar of the defendant filed an affidavit stating that he had seen the plaintiff, Narain Das, on the previous evening at Brindaban. The Court could not take any action on the telegram which had been received. There being no application for adjournment, nor any explanation as to why counsel stated that they had no instructions, the Court proceeded to consider the case on the merits and, believing the evidence produced by the defendant, it dismissed the suit, holding that Rule 3 of Order 17 of the Code was applicable to the case.

(3.) Learned Counsel appearing for the plaintiff-appellant has argued that the Court was wrong in proceeding under Order 17, Rule 3 of the Code and has urged that it should have proceeded under Rule 2 of that Order. His contention is that as the application of 16 February 1937 had been filed by both the parties and as time had been granted to both of them, Rule 3 was not applicable. He has relied on the cases in Alwar Ayyangar V/s. Seshammal (1887) 10 Mad. 270, Ma Chon v. Maung Myint (1927) 14 A.I.R. Rang 148 and Bhajan Singh V/s. Prem Narain . Rule 3 of Order 17 has been amended by this Court, and the amended Rule reads as follows: Where any party to a suit, to whom time has been granted, fails, without reasonable excuse, to produce his evidence, or to cause the attendance of his witnesses, or to comply with any previous order, or to perform any other act, necessary to the further progress of the suit, for which time has been allowed, the Court may, whether such party is present or not, proceed to decide the suit on the merits.