1. This is a plaintiffs' appeal arising out of a suit, based upon a number of hundis. The suit was instituted in the Court of the Sessions and Civil Judge of Cawnpore, but was transferred to the Court of the Civil Judge of Banda. It was transferred ultimately to the Court of the Additional Civil Judge of Banda. There were various adjournments in the case at the instance of the plaintiffs, with which it is not necessary to deal at this stage. The case finally came up for hearing on 28th January 1939 and was again at the instance of the plaintiffs, adjourned to 13th February 1939 for final hearing. On 3rd February 1939 the plaintiffs deposited the necessary process fee for the summoning of the witnesses and processes were issued for the purpose. The plaintiffs reside at Cawnpore. The defendants are residents of Hamirpur. Barring one witness, all the witnesses summoned by the plaintiffs reside at Cawnpore. It appears from the affidavit sworn by Mathura Prasad, the mukhtaram of the plaintiffs, printed at p. 14 of the paper-book, that there were serious riots at Cawnpore on 11th February which continued upto 14th February 1939. On. 13th February the plaintiffs sent a telegram at 9-55 to the presiding officer of the Court to the following effect:
Serious rioting here. Cannotcome. Postpone date. Udai Ram, Gopi Ram.
This telegram was received at Banda at 2 P. M. and was delivered to the Court at 3-30 P. M. Earlier in the day the case had been called on. The plaintiffs were not present, nor were their witnesses, and their counsel made a statement that they had no instructions to proceed with the case. The Court, purporting to act under Order 17, Rule 3, dismissed the suit with costs. Order 17, Rule 3 provides:
Where any party to a suit, to whom time has been granted, fails, without reasonable excuse, to produce his evidence or to cause the attendance of the witnesses or to comply with any previous order or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may proceed to decide the suit on the merits.
There is no doubt that it lies with the Court to decide the case on the merits on the postponed date of hearing, but as will be manifest from the rule itself, the absence of the party or his failure to produce evidence must be 'without reasonable excuse.'
2. If, as in this case, there were serious riots at Cawnpore and if the plaintiffs had taken the necessary steps to summon the witnesses but if, in spite of their efforts, they could not themselves be present on 13th February, nor could their witnesses, it cannot be said that the absence of the plaintiffs or of their witnesses was 'without reasonable excuse.' We, however, must make it clear that at the precise moment when the learned Additional Civil Judge passed his order he was not necessarily wrong. His attention, however, was invited to these facts at a time when he could grant no redress to the plaintiffs, because they were brought to his notice in an application for setting aside the ex parte order. Once the learned Judge had passed the order under appeal, he himself had no jurisdiction to set it aside, inasmuch as it was not an order under Order 17, Rule 2, but was one passed under Order 17, Rule 3, Civil P.C. But, now when the matter is in appeal before us, we are entitled, indeed we ought to take into consideration the evidence adduced by the plaintiffs in support of their theory that their absence or that of their witnesses was not 'without reasonable excuse.' And we have come to the conclusion that they have made out a case of 'reasonable excuse.'
3. We, therefore, think that this is a fit case in which the plaintiffs should be given a fresh opportunity to prove their case.
4. In passing this order we have taken into account the fact that while the plaintiffs have made out sufficient cause for their absence or the absence of their witnesses, the learned Judge was also not wrong in passing the order which he did.
5. We, therefore, allow this appeal, set aside the decree of the Court below and send the case back for trial according to law. Costs here and hitherto will abide the event.