Balmukund Ram Marwari vs Madho Prashad @ Madhuri Lal

Das, J.—This application must succeed. The suit was instituted on the 28th July, 1922, and the Court fixed the 23rd August, 1922, for settlement of issues and for appointment of a guardian ad litem of the minor defendants. On the 23rd August, 1922, the plaintiff applied for time and the suit was adjourned till the 14th September, 1922, for appointment of a guardian. On the 14th September, 1922 the plaintiff appeared but the defendants did not appear and the Court passed the following order "plaintiff to prove service of summons, to deposit Rs. 24 towards the fee of the guardian, to file a copy of plaint. On plaintiff''s petition for time the suit is adjourned to 19th September, 1922, for appointment of guardian." It will be noticed that up to this time the Court was not in a position, to dispose of the suit, for the guardian to the minor defendants had not been appointed. On the 19th September 1922 the plaintiff did not appear and the learned Munsif dismissed the suit for default.

It is contended by Mr. Sushil Madhab Mullick on behalf of the petitioner that this order passed on the 19th September, 1922, was wholly without jurisdiction inasmuch as the 19th September, 1922, was not a date fixed by the Court for the disposal of the suit. It appears to me that this contention is right and must prevail. The suit was not ready for disposal on that date nor did the learned Munsif fix that date for the disposal of the suit. I would accordingly allow this application, set aside the order of the 19th September, 1922, and direct the learned Munsif to proceed with the suit. There will be no order as to costs.

Boss, J.

I agree.