Jugeshar Rai vs Railal Bahadur

This is an application in revision in respect of an order made by the Munsif of Hajipur dismissing a suit. The suit was brought by a tenant for the recovery of possession of the land from his landlord. It was filed on the 15th of June 1915. Some defect appears to have arisen in the matter of obtaining a proper service of the summons. The written statement was not filed till the 14th of April 1916. Issues were framed on the 18th of April 1916 and an order was recorded in the order-sheet adjourning the case to the 6th of May 1916. The case was, however, in fact taken up on the 5th and not the 6th of May 1916. On that date one of the plaintiffs was present and an application for adjournment was presented for the purpose of filing a list of witnesses and documentary evidence. The Munsif thereupon passed an order in the following terms: "The case is one year old nearly. Plaintiffs'' petition for time is very harassing. Therefore it is rejected". On the same date the learned Munsif made the following order: "No further step is taken. The case is dismissed with costs". From this order an appeal was taken by the plaintiff to the District Judge and the learned Judge held that no appeal lay to him and accordingly dismissed the appeal making, however, no order as to costs. Against the order of the learned District Judge we have been moved in revision. We are of opinion that the learned District Judge fell into an error in holding that no appeal lay to him. One at least of the plaintiffs was present when the case was taken up for hearing, therefore it cannot be held to be a dismissal for default. The learned District Judge should have taken up the appeal and determined whether the application for adjournment was properly refused or not. On behalf of the opposite party it has been pointed out that if we hold that an appeal lay to the District Judge, it must be on the ground that the order of the Munsif was a decree within the meaning of the definition of a decree given in the Civil Procedure Code, and that accordingly the only relief open to the petitioners is by way of second appeal and not by way of revision. This contention appears to us to be correct and we direct that this application in revision be treated as a second appeal. No question of Court-fee arises inasmuch as the applicant has paid more Court-fee than he would be required to pay in the case of a second appeal. There is, however, one matter which we must notice in the order which we shall make. It appears to us from the fact that the application for adjournment was filed upon the 5th of May that the plaintiffs knew that that was the date fixed for the hearing of their case and we do not believe the statement to the effect that they were not aware that that was the date fixed for the disposal of their case. In these circumstances the order which we shall make is this. We set aside the order of the learned District Judge dismissing the appeal and we direct that upon his being satisfied that the appellant has paid to the respondent the costs incurred by the respondent, he do re-admit the appeal and hear and dispose of it on merits. The learned District Judge is further directed to allow a reasonable time for the payment of the coats by the appellant to the respondent and upon his being satisfied that these costs have been paid within that time, he will admit the appeal. If the costs are not paid within such time as the learned District Judge thinks reasonable, he will dismiss the appeal.

Let the record of this case be sent down at once.