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Judgment
Norman Macleod, Kt., C.J.—This suit was tiled so far back as April 2, 1917. For one reason or another the hearing of the suit was not fixed until April 13, 1921. On April 2, 1921, the plaintiff applied that summonses should be issued to the persons mentioned in the list of witnesses filed in the Court. The learned Judge said :-
The application is made at too late stage in this suit, It is not possible to get the summonses served in time as the date fixed is only April 13, 1921. No satisfactory reason is given for calling for the original record of Government. The application is rejected with costs on the plaintiff.
Thereafter the suit was heard and dismissed with costs. The appeal met the same fate.
Unfortunately the attention of neither of the learned Judges was called to the decision of this Court in Bai Kali v Alarakh Firbhai ILR (1890)15 Bom. 86 where it was held that "under Section 159 of the Civil , Procedure Code (XIV of 1882) a party to a suit was entitled, as of right, to obtain summonses any time before the date fixed for the disposal of the suit ". Section 159 of the old Code is now Order XVI, Rule 1, of the Code of 1908, and consequently the Judge was bound to issue summonses to the witnesses according to the application of the plaintiff. If then an adjournment had been asked for at the hearing because the witnesses mentioned in the list, tiled on April 2, 1921, did not attend, the Court would have considered whether it should be granted. We must, therefore, set aside the decree of the lower appellate Court and remand the suit to the trial Court for a retrial.
All costs to be costs in the cause.