1. It is clear to me that an appeal did lie to the lower appellate Court and a second appeal here. Revision No. 240 of 1928 to this Court is, therefore, dismissed. As regards the second appeal, the view taken by the lower appellate Court is correct, but, in my opinion, that Court ought to have circumscribed the remand to the trial Court. 17th January 1928 was the date fixed for the hearing in the trial Court in a case in which the summons had been issued for the final disposal of the suit. The plaintiff was present and applied for adjournment, whereupon the Court passed a conditional order of adjournment on the plaintiff depositing Rs. 20 as costs to be paid to the opposite party. Costs were not paid up to 30th January 1928, whereupon the Court dismissed the suit for want of prosecution. The Court had no jurisdiction to do so. Under Order 17, Rule 2, Civil P.C., such action could be taken only where on any date on which the hearing of the suit is adjourned the parties, or any of them fail to appear. The proper rule applicable to this case is Rule 4, O.15. Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies the Court may at once pronounce judgment, or may, if it thinks fit after framing and recording issues, adjourn the suit for the production of such evidence as may be necessary for its decision upon such issue. The Court did not think fit to adjourn the suit except upon a condition, and upon the condition not being fulfilled, the Court could have refused to grant the application for adjournment filed on 17th January 1928. On refusing that application the Court was bound to adopt the second course of pronouncing judgment at once. The Court had no jurisdiction to dismiss the suit for want of prosecution. It is obvious that adjournment depended upon the payment of damages, and not the decision of the suit. On failure to pay damages the prayer for adjournment failed, but the suit remained where it was, and the second alternative of Rule 4, Order 15 had to be followed by the trial Court. Such a pronouncement of judgment will amount to a decree appealable to the District Judge.
2. The remand was properly made by the lower appellate Court because the trial Court had not brought its mind to bear on the subject of the decision of the case. At the same time the plaintiff is not entitled to produce further evidence. He failed to produce on 17th January 1928 without sufficient cause in the opinion of the trial Court and failed to take advantage of the indulgence of the Court by paying damages. Under the circumstances the position should be restored to that which existed on 17th January 1928, and the trial Court should be directed to pronounce judgment on the evidence which existed on 17th January 1928.
3. In the result I modify the decree of the lower appellate Court and direct that the suit shall be tried on the merits but on the basis of the evidence which existed on 17th January 1928 and after hearing arguments of counsel. Except for this modification the appeal is dismissed. Costs here and heretofore shall abide the result, but Rs. 20 directed to be paid by the plaintiff to the defendants shall not be paid because the plaintiff has been denied the advantage to be obtained by him by such payment.