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Pabitra Kunwar Vs. the Maharaja of Benares - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All367
AppellantPabitra Kunwar
RespondentThe Maharaja of Benares
Excerpt:
procedure - refusal of court of first instance to examine, all the plaintiff's witnesses--appeal by defendant decreed--remand. - - on appeal the learned district judge was not satisfied that the evidence on the record was sufficient to establish the plaintiff's claim......evidence already on the record, and passed a decree in favour of the plaintiff. on appeal the learned district judge was not satisfied that the evidence on the record was sufficient to establish the plaintiff's claim. a representation was made to him that all the evidence which was available had not been produced by the plaintiff before the munsif. in view of this we think that the learned district judge ought not to have dismissed the plaintiffs suit, but ought to have remanded the suit to the court of first instance with directions that it be retried, an opportunity being given to the plaintiff of examining her witnesses and adducing all her evidence. this was the course which was adopted in kifayatullah mondol v. sakina bibi (1897) 11 c.w.n. p. xcii. it is supported by the.....
Judgment:

John Stanley, C.J. and Karamat Husain, J.

1. We think that the learned District Judge was wrong in, dismissing the plaintiff's suit without first giving her an opportunity -of examining all the witnesses whom she was prepared to examine before the Court of first instance. It appears that by reason of default of the defendant in complying with the order of the Court his defence was struck out and the suit was heard ex parte. Be-fore the plaintiff had examined all her witnesses the Munsif intimated that, inasmuch as the case was undefended, there was sufficient evidence already on the record, and passed a decree in favour of the plaintiff. On appeal the learned District Judge was not satisfied that the evidence on the record was sufficient to establish the plaintiff's claim. A representation was made to him that all the evidence which was available had not been produced by the plaintiff before the Munsif. In view of this we think that the learned District Judge ought not to have dismissed the plaintiffs suit, but ought to have remanded the suit to the Court of first instance with directions that it be retried, an opportunity being given to the plaintiff of examining her witnesses and adducing all her evidence. This was the course which was adopted in Kifayatullah Mondol v. Sakina Bibi (1897) 11 C.W.N. p. xcii. It is supported by the decision of a Bench of this Court in Kalyani Prasad v. Bishnath Weekly Notes 1905, p.266. We therefore allow the appeal. We set aside the decrees of both the lower Courts, and we remand the suit through the lower appellate Court to the Court of first instance with directions that it be reinstated on the file of pending suits in its original number and be disposed of on the merits. Costs here and hitherto will abide the event.


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