1. This order is clearly right. We really have nothing to add to the order of the Additional District Judge, were it not for the perfectly astounding proceedings of the Munsif-but for his benefit, we add a word or two. We give him credit for the best possible motives. He says that the case has become very old, and that there have been several adjournments, and that he cannot adjourn it again. No doubt, he was impressed with the general complaint, which is often made of cases which remain pending too long, and are too easily adjourned. But a Judge ought to hesitate a long time be fore he applies an admirable precept of prompt despatch of work so as to punish, without a scrap of justification, a man who bore not a shadow of responsibility for the accident which had occurred. If third parties carrying out formal and necessary proceedings, under the direction of the Court, happen to be guilty of such delay as to cause necessary adjournments, that cannot be the fault of the parties, and it might have occurred to the Munsif that it is never right to punish a man for circumstances over which he has no control.
2. So far from being in default the plaintiff was doing his utmost to comply in every way with the orders of the Court and the necessities of the case. Nobody can put it better than the District Judge has done. It was not in the power of the plaintiff to procure the papers from Calcutta before the 15th October on which date the suit was dismissed. They were not, in fact, received until the 25th October. That was simply the consequence of the proceedings in Calcutta. Whether it is anybody's fault in Calcutta, does not matter, and we have no materials for judging it, but it certainly was not the fault of the plaintiff.
3. As often happens, when a Court is unconsciously doing an act of flagrant injustice, a difficulty arose in putting the decision into the necessary form, required by law, to draw up the order. The so called decree or order, whatever it may be, when you come to analyze it, is really nonsense, and it was certainly the duty of the successful defendant to draw the Court's attention to the form of the decree. It is described as an order in a miscellaneous case. It is said in the recital that it is brought forward for disposal. The recital goes on to set out that it is being disposed of before no less than five pleaders on behalf of the plaintiff, who is foolishly described as the petitioner, while the defendant is the opposite party for some unexplained reason, and finally after showing that there was no default in the ordinary sense of the Words 'by absence,' because, both parties were present, it dismissed the plaintiff's claim for default. In substance, in our view, this was the disposal of the suit on the merits, on the ground that the plaintiff, although present, was unable to prove his case at the trial. There was no personal default by him. There was no default by absence, and the duty of the Court was to proceed to decide the, suit forthwith, not with-standing the default described in the rule.
4. Probably the correct way of drawing up the decree would have been to say that notwithstanding the failure of the plaintiff to produce his evidence, the Court proceeds to decide the suit and dismiss it with costs. That would have been an unjust order, but it would have been an attempt to comply with the rule under which the Court was clearly acting. The High Court has recently amended these very rules in order to avoid the tangles into which the Courts below constantly get, in dealing with these questions of failure, and default of various kinds, and to assist them to clear their minds as to whether they are really dismissing the suit for default, or disposing of it on the merits. But in our view the old formal rule is adequate to meet this case, and the case must be treated as having been dealt with under Order 17, Rule 3, and, therefore, subject to the appeal which was brought to the District Judge. We might add that if any decision were necessary, there is a binding decision by a Bench of this Court, Madho Singh v. Kashi Singh  16 All. 342, where it is held that when a commission is ordered, the Court should wait for the return of the commission before proceeding to hear and determine the case. We are obliged to the gentleman appearing for the respondent, for having drawn our attention to that authority, which, no doubt, would have assisted the Munsif, if he had been aware of its existence. But we think that it might have occurred to him, without any authority, that what he was doing was hardship upon a perfectly innocent party.
5. The appeal is dismissed with costs.