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Judgment
This is an appeal against an order under Order IX, Rule 9, refusing to set aside the dismissal of the plaintiffs'' suit.
The facts of the case briefly are that the 1st of March 1917 was fixed for the settlement of issues. The plaintiffs had failed to complete the service of summons upon either of the two defendants. But in spite of this the second defendant had appeared, the first defendant being still absent. The plaintiff himself failed to appear, nor did any agent or Vakil appear on his behalf. The suit was accordingly dismissed. The reasons given for the plaintiffs'' failure to prosecute the suit were, firstly, that the case was in charge of one Bhagwan Sahai who was ill on the day in question, and secondly, that the plaintiffs had been much upset by the death of a member of their firm named Atlanta Ram, In addition to these two grounds for restoring the suit it is urged, firstly, that the 1st of March having been fixed for the settlement of issues only was not a date fixed for the hearing within the meaning of Rule 8 of Order IX, and, secondly, that on the day in question the District Judge having directed, that the Courts should close at 2 p. m. and the order complained of having been passed at 3:30 p. m., the order was a bad order.
We may deal briefly with the last two points taken. The District Court has no jurisdiction to close the Subordinate Judge''s Court, and it is nowhere suggested that owing to the Subordinate Judge''s failure to close the Court the plaintiff or his agent was caught unawares. Moreover, it appears that so fur as the Subordinate Judge''s Court was concerned, no notice of the Judge''s order was received ''before 3-30 p. m. With regard to the contention that the date fixed for the settlement of issues is not a date fixed for the hearing, it is sufficient to read Order XIV, Rule 1, clause 5. It is clear from the use of the word bearing'' in that'' clause that the date fixed for the settlement of issues is as much a date fixed for the hearing of the suit as any other date fixed.
Upon the merits of the case we feel constrained to accept the Subordinate Judge''s findings upon the facts. It was not suggested that Ananta Ram was looking after the case; it was the plaintiffs case that Bhagwan. Sahai was in charge of it. Ananta Ram''s death, therefore, would not have affected Bhagwan Sahai''s ability to appear and either ask for an adjournment or prosecute the suit. We find it impossible to differ from the finding of the learned Subordinate Judge that Bhagwan Sahai was not prevented by illness from taking necessary action in the case, for it has been proved to our minds conclusively that Bhagwan Sahai was not only not ill on the day in question but was actually looking after a bait of the plaintiffs in the Batwara Deputy Collector''s Court. Upon all the grounds urged we are of opinion that the appeal fails. It is dismissed with costs.