Debi Lal vs Jai Prakash Narain Singh and Another

Mullick, J.—The suit was instituted on the 23rd August 1922. The plaintiff filed his account-books which were in the Mahajani character and applied for their return on condition that a true copy was kept upon the record. The Court ordered that the books should be returned after inspection by the defendants and adjourned the case till the 9th January 1923. On the 9th January the Court directed that the plaintiff should make over a Hindi copy of the entries to the defendants and he adjourned the case for hearing till the 27th January. Instead of supplying Hindi copies it appears that the plaintiff supplied copies, in Devanagari both to the Court and to the defendants. On the 27th January the defendants applied for an adjournment and for issue of warrant of arrest on Rai Sahib Surajmal, who is the brother of the plaintiff. The Court thereupon recorded the following order: "Plaintiff to make over a Hindi copy of the entries of rokar and khata to the defendants'' Pleader. The plaintiff''s Vakil, Babu Deep Narain Lal, undertakes to make Rai Sahib Surajmal appear in person on the date fixed. Both parties to come ready on the date fixed. Plaintiff''s witnesses to come over on the said date." It seems that when this order was presented for counter-signature to the Pleader of the plaintiff, he recorded the following note: "I have undertaken to only inform him."

Nothing further appears to have been done by the learned Subordinate Judge in the matter and on the 28th March, when the case came up for hearing, the plaintiff put in a petition for the issue of a commission for the examination of Rai Saheb Surajmal on the ground that he was ill. The Court thereupon recorded the following order: "The plaintiff has not yet complied with the Court''s order of 9th January 1923 and 27th January 1923. The suit is, therefore, dismissed. Defendants will get costs on ex parte scale." It is not clear under what provision of law this order was passed. To begin with, there is no statutory provision compelling the plaintiff to furnish the defendants with a copy of his documents either in Devanagari or Hindi or in any other language. The Court''s direction upon the plaintiff to furnish a copy of the account-books in the Hindi character was wholly without jurisdiction. In point of fact, the plaintiff did make an attempt to comply with the Court''s order by furnishing the defendant with a copy in the Devanagari character which is the alternative Court language for the Gaya District, and in any event the learned Judge''s order dismissing the suit on this ground was, in my opinion, wrong.

Then, with regard to the non-compliance in the matter of the production of Rai Saheb Surajmal, the note recorded by Babu D.N. Lal seems to indicate that he never agreed on behalf of his clients to produce Rai Saheb Surajmal in person. Indeed, it is difficult to see how he could be made to produce a witness in person if that witness either by reason of illness or for any other cause was unable to appear in Court; much less was it possible for the Subordinate Judge to dismiss the suit because the plaintiff had not been able to bring the defendant''s witness to Court on the 28th March.

It is contended that the learned Subordinate Judge acted under Order 17, Rule 3, Civil Procedure Code, and that as the plaintiff had failed to carry out an order which prevented him from continuing the trial, he was justified in dismissing the suit under Rule 3 of Order 17. Now, in both the above matters the learned Subordinate Judge acted without authority; but apart from the fact that there was no statutory provision the orders were in themselves so unreasonable that it was impossible to expect the plaintiff to carry them out. His proper course was either to issue a warrant for the attendance of Rai Saheb Surajmal or to issue a commission for his examination as requested by the plaintiff and in any event he should have called upon the plaintiff to proceed with his case; and if he was unwilling to grant any further adjournment he should have made a decree upon the evidence adduced before him.

In my opinion the order of the 28th March was not a decree, for there was no adjudication. I agree also that it was wholly without jurisdiction.

The result is, that the order of the Subordinate Judge will be set aside with costs hearing fee Rs. 32.

The Subordinate Judge is directed to proceed with the trial according to law.

Bucknill, J.

I agree.