Devendra Nath Ghose and Others vs Abdul Hamid Mia and Others

Ram Labhaya, J.—This petition of revision is directed against the order of the learned Munsiff, Nowgong, dated 25-6-1949 by which he set aside his order dismissing the suit and restored it to his file.

On 24-9-1948, when the case came up for hearing, the defendants were ready with their witness. On behalf of the plaintiffs an adjournment of the case was prayed for on the ground that the Commissioner had not completed the local investigation. In view of the circumstances of the case, the adjournment was granted. The suit was adjourned to 6-12-1948. It was stated in the order that no further adjournment shall be allowed under any circumstances and the non receipt of the Commissioner�s report shall not be a ground for it.

On 6-12-1948, defendants were again ready with their witnesses. Plaintiffs again requested for an adjournment on the ground that the report from the Commissioner had not been received and without the report it was not possible for them to prove the case. This time the prayer for adjournment was refused. The learned Judge found that the Commissioner had about 9 months time for making his report. The parties had been given the option to ask for Anr. Commissioner to be appointed in his place if they found it necessary and plaintiffs had not availed of this opportunity. When the petition for adjournment was rejected, plaintiffs retired and the suit was dismissed with costs but was restored on 25-6-1949 on an application for restoration made by the plaintiffs. The learned Judge when restoring the suit held that it was not fair to throw the entire blame on the plaintiffs for the delay in the execution of the commission as the matter was not altogether in their control.

The first contention raised on behalf of the petitioners is that an application for restoration was not competent. The order by which the suit was dismissed fell under Order 17, Rule 3 and the remedy of the plaintiffs was by way of an appeal from that order. This contention was raised at the hearing. It is not amongst the grounds raised in the revision petition. The point was however raised in the trial Court but the learned Judge was of the view that the application for restoration was competent. He declined to hold that his previous order dismissing the suit was covered by Order 17, Rule 3, Civil P.C.

It is clear that the suit was dismissed after the plaintiffs retired. It was, for all practical purposes, a dismissal for default. The learned Judge made no reference to the merits of the case. As no decision on the merits was given, the dismissal could only be attributed to non-prosecution of the suit by the plaintiffs and the learned Munsiff was, therefore correct in the view that a petition for restoration was competent.

The learned Counsel for the petitioners has relied on Hingo Singh and Others Vs. Jhuri Singh and Others, in support of his contention that in the circumstances of this case the dismissal of the suit ought to be regarded as one under Order 17, Rule 3 We do not think that this case has any application to the facts of the present case. In this case the plaintiffs were all present and, therefore, the learned Judges of the Allahabad High Court could not possibly hold that the dismissal was in default. This distinguishes the case from the one before us.

The second contention raised was that by its order dated 6-12-1948, the Court refused to adjourn the case mainly on the ground that plaintiffs were not diligent in the prosecution of their case. There was no new fact brought to the notice of the Court by the application for restoration. In these circumstances the Court was not justified in restoring the case as there was no sufficient cause for the non-prosecution or the case.

Reliance has been placed on Baijnath Bothra and Others Vs. Kedar Nath Bothra and Others, in support of this contention. In that case also a request for adjournment was made. It was refused. The plaintiffs'' counsel then retired from the case stating that'' he had no further instruction. The suit was dismissed. The learned Judge was inclined to the view that the dismissal should be treated as one under Order 9, Rule 8. He, however, declined to restore the suit on the ground that plaintiffs, In order to obtain restoration of the suit, had to show some fact which was either not known to the Court when it dismissed the suit or at least at that stage lacked satisfactory proof and this they had failed to do As there was nothing new placed before him which he could possibly describe as sufficient cause for non appearance of the plaintiffs, he did not restore the suit. The learned Judge when so deciding merely pointed out a practical difficulty. If an adjournment is refused and plaintiff retires from the case with the result that the suit is dismissed in his absence, it Will be open to the Judge to restore the suit only if on an application made for restoration it is made to appear that the plaintiff was not guilty of any default which should have led to the dismissal of the suit any new fact or some fresh evidence explaining away the apparent default would justify restoration according to this view. These grounds are of course not exhaustive. The learned Munsiff, In this case, came to the conclusion after considering the matter that plaintiffs were not entirely responsible for the delay in the execution of the Commission. In that view, the refusal to adjourn the case, which led to its dismissal, would not be completely justified. There does not appear to be any defect of jurisdiction In the order and as the learned Munsiff by restoring the case has merely rectified an error in order to do substantial justice in the case, interference on revision is neither desirable nor proper.

The petition for revision is, therefore, dismissed. We make no order as to costs.

Thadani, C.J.

I agree in the result .I do not however, wish to express my opinion as to the applicability or otherwise of the view taken in Hingo Singh and Others Vs. Jhuri Singh and Others, to the facts of this case.I am content to the decline interference in the Exercise of our revisional jurdisition on the ground that the learned Judge on Second throught , did only what justice required to be done.