(Syed) Shah Mahomed Maudood and others vs Maharaja Sir Rameshwar Singh Bahadur and others

Mullick, J.—In 1918 and 1920 Shah Muhammad Maudud, Hafiz Karim, Muhammad Musa, Shujait Ali, Abdul Mali and Zafar Hussain filed 3 suits against a large number of defendants for a declaration that certain properties were wakf properties and that they could not be sold in execution of certain mortgage decrees obtained by the defendants (the Maharaja of Darbhanga and others). On the 29th July 1918 Hafiz Karim filed a petition through his pleader Babu Avadesh Kishore stating that he would withdraw from the suit and the Subordinate Judge''s order thereon was that the petition should be put up on the date of the opening of the case. A similar petition was thereafter made by the plaintiff Abdul Mali and after the case had run a leisurely course it came on for hearing on the 8th August 1921. On that date when the case was called on the plaintiffs did not respond and the order sheet of the Court shows the following entry:-

Defendant has put in Hazri. His Vakils are ready. The plaintiff does not respond to call. His pleader Mr. Abdur Rahman has sent word that he has no instruction to-day. Inform plaintiff''s pleader.

The signatures of Maulvi Abdul Rahman and Abdul Quayum, two Vakils engaged by the plaintiffs show that the entry was duly shown to them.

A little later on the same day the Court recorded the following order:-

After the above order a petition for time is put in on behalf of the plaintiffs on the ground that some plaintiff is dead and some is at Muzaffarpore and so forth. The case has been pending for the last 3 years or so. It appears from the order sheet that enough time has been allowed to the plaintiff to be ready in this suit but he was never ready. The other side is ready with his witnesses and I see no reason to grant any adjournment and so I reject plaintiff''s petition for time.

To the right of this order under the heading "Pleaders'' signatures" appear the following entries "Sd. S.L. Singh Pleader. Sd. A. Quayum, Vakil." "I have no further instructions, Sd. A. Rahman, Vakil 8.8.21".

Later again on the same day the Court recorded the following order:-

No further steps by the plaintiffs. The plaintiffs failed to adduce evidence though time was given to them to do so in support of their case. The suit is therefore dismissed with costs for want of evidence under Order 17 Rule 3, C.P. Code.

An application was then made on the 18th March 1922 for the restoration of the suit under Order 9 Rule 9 of the Civil Procedurs Code; but the Subordinate Judge held that the suit having been disposed of under Rule 3 of Order 17 and not under rule 2, the application under Order 9 was not maintainable.

Thereupon Saiyid Shah Muhammad Maudud, Muhammad Musa Sujait Ali and Zafar Hussain filed the present application to this Court on the 23rd March 1922 for the exercise of its revisional jurisdiction u/s 115 of the Civil Procedure Code.

Now, it is clear that on the 8th August 1921 the Vakils of the plaintiffs had no instructions to prosecute the case. They were apparently instructed only to apply for an adjournment and in these circumstances there could have been no appearance on behalf of the plaintiffs at the hearing of that day. The dismissal was therefore one under Rule 2 of Order 17 and the Subordinate Judge was in error in basing it upon Rule 3.

The application for restoration under Order 9 Rule 9 was therefore maintainable and the Subordinate Judge declined to exercise jurisdiction in refusing to hear the evidence in support of it.

We accordingly set aside his order and direct that the application for restoration be disposed of according to law.

It is contended by the opposite party that a remand will only protract a litigation which has already continued for nearly 5 years and we have been asked to dispose of the application for restoration ourselves. We hesitate to adopt this course as it is possible that all the evidence upon which the plaintiffs rely may not be before us. The petition dated the 8th August 1921 asks for an adjournment on the following grounds:-

(i) the illness of Shah Muhammad Maudud, (2) the absence of Zafar Hussain on business at Muzaffarpore, (3) the death of Hafiz Karim, and (4) the refusal of Abdul Mali to prosecute the suit. With regard to Hafiz Karim, it is clear that as he had already applied for leave to withdraw no substitution of his heirs was necessary, as for Abdul Mali his refusal to continue to appear as plaintiff was also no ground, the only question therefore is whether the suit could not proceed in the absence of Shah Muhammad Maudud and Zafar Hussain and whether there was sufficient cause for such absence. The learned Counsel for the plaintilfs contends that the answer to this question is in the affirmative and he prays that an opportunity may be given to him to adduce evidence. We think his prayer should be allowed.

We accordingly direct that upon the record reaching the Subordinate Judge he do fix a date for hearing the application under Order 9 Rule 9 C.P.C. allowing sufficient time to both parties to produce their evidence and that if for any reason whatsoever the parties or either of them be not ready to proceed with the hearing on the date so fixed, no further adjournment be given and the case be forthwith disposed of.

It will not be necessary to issue notice of the date fixed for hearing to any of the parties other than those who have appeared before us to-day namely, Saiyed Shah Muhammad Maudud, Haji Sheikh Muhammad Musa, Sheikh Shujait Ali, and Saiyid Zafar Hussain Khan the petitioners and Maharaja Sir Rameshwar Singh Bahadur, Chowdhury Kedar Nath Thakur, Mr. Saiyid Hassain and Ramsundar Dass Bairagi the opposite party.

The application is allowed with costs; hearing fee one gold mohur.

Macpherson, J.

I agree.