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Sri Nath Vs. Mata Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All476
AppellantSri Nath
RespondentMata Prasad and ors.
Cases ReferredYad Ram v. Sundar Singh
Excerpt:
- - february 1933, and that therefore no good cause for adjournment was shown. the mere fact however that the court issued a telegram to the commissioner does not prove that the court intended to grant an adjournment and the lower appellate court may have been perfectly right in holding that the trial court had not acted irregularly in refusing to wait for the return of the commission in spite of the fact that the commissioner had fixed a date for the evidence of this witness which was actually later than the date for the final disposal of the suit......cause is shown at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. the question of whether there is sufficient catise for an adjournment is a question of fact, and the lower appellate court undoubtedly had jurisdiction to decide the matter. whether the decision of the lower appellate court on the merits is right or wrong, it must be held to he final on this point. this is the view expressed in a bench decision of this court in yad ram v. sundar singh 1923 all. 392, on which the opposite party has relied. the facts arc not exactly similar to those in the present case, but they are analogous, and the principle is the same. it has been argued however that this court may look to the decision of the lower appellate.....
Judgment:
ORDER

Kendall, Ag. C.J.

1. This is an application for the revision of an appellate order of the Subordinate judge of Mirzapur, upholding the decision of the trial Court. A preliminary objection has been raised that the provisions of Section 115, Civil P.C., will not cover such a case as the present. The circumstances areas follows:

2. The plaintiff-applicant sued one Lachhu Ram in the Munsif's Court, and 27th April 1932, was fixed for issues. There were adjournments, first on the application of the defendant and then on that of the plaintiff until 11th July for which date the plaintiff summoned eight witnesses, but one of his witnesses, Ram Sagar, was unserved. The plaintiff however intimated that he was ready to go on with the case, but the defendant made an objection on the ground that all the witnesses should be heard on one day, and on this the plaintiff also asked for an adjournment with the result that the hearing was postponed until 17th August, far which date both parties summoned witnesses. On this again Ram Sagar was not present, though he had been summoned, and another witness, Mahadeo Prasad wais stated to be in jail. The plaintiff therefore made an application to the Court to issue a commission to examine Ram Sagar, and this was allowed. On 16th September 1932, the plaintiff applied that the defendant had died, and that his heirs might be brought on to the record. The heirs were impleaded, and 13th February 1933, was fixed for fresh issues and 19th April for final disposal.

3. In the meanwhile proceedings had been taken for the issue of a commission for the examination of the witness Ram Sagar, and 12th April, had been fixed by the Commissioner for this purpose. On 11th April, however the plaintiff made an application to the Court of the Munisif, in which he stated that. Ram Sagar had gone from Calcutta to Rangoon. At the same time the plaintiff applied for Summoning his other witnesses, all of whom were local, men, but he mentioned that Mahadeo Prasad, the witness who had previously been in jail, had been arrested the day before the application. The Munsif did not record any order granting an adjournment of the hearing, but it does appear that he sent a telegram to the Commissioner. We do not know how the telegram was worded, but we do know that in reply the Commissioner sent a letter to the Court dated 1st May, saying that he had fixed 21st May, for the recording of the, evidence of Ram Sagar. The case was however taken up by the Munsif on 19th April, and was disposed of by him on the merits apparently under Order 17, Rule 3. An appeal was made by the plaintiff to the Subordinate Judge partly on the ground that Order 17, Rule 3, did not apply, and partly on the merits, namely, that an adjournment should have been allowed. The lower appellate Court however found that the suit had been adjourned more than once on the plaintiff's request, that the plaintiff had had seven, weeks at his disposal to be ready, with his evidence since 13th. February 1933, and that therefore no good cause for adjournment was shown.

4. It has been argued in support of the present application, in the first place, that Order 17, Rule 3, did not apply because the last adjournment, namely, that from 13th February, and 19th April, had not been made at the plaintiff's request. This is a very technical plea, because it is probable that the last order of adjournment was on 17th August 1932, the proceedings since then having been in suspension owing to the death of the defendant. But the matter does not appear to me to be of any importance, because the question that the Court had to decide on April 19, was whether an adjournment should be allowed or whether the suit should be disposed of. Under Order 17, Rule 1, the Court may, if sufficint cause is shown at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. The question of whether there is sufficient catise for an adjournment is a question of fact, and the lower appellate Court undoubtedly had jurisdiction to decide the matter. Whether the decision of the lower appellate Court on the merits is right or wrong, it must be held to he final on this point. This is the view expressed in a Bench decision of this Court in Yad Ram v. Sundar Singh 1923 All. 392, on which the opposite party has relied. The facts arc not exactly similar to those in the present case, but they are analogous, and the principle is the same. It has been argued however that this Court may look to the decision of the lower appellate Court, but to the decision, not of the Munsif, and if it comes to the conclusion that the Munsif acted either without jurisdiction or with material irregularity, it will be justified in interfering. It is claimed that the Court had by its telegram of 11th April, extended the time for the return of the commission which had already been issued, and that to proceed to dismiss the suit without considering the evidence of this witness was an irregularity. It is not clear from the judgment of the lower appellate Court whether the circumstances surrounding the issue of this telegram wore brought to the notice of the Court by counsel for the plaintiff-applicant. But the evidence that is before me was before that Court, and the sending of the telegram was one of the facts on which the Court was able to base its decision. It has not been proved that the trial Court intended to grant an adjournment. It is quite possible that the telegram was issued at the instance of the plaintiff and on the chance that the commission might be returned in time for the hearing on 19th April, though the dates certainly make it unlikely that the commission could he returned in time. The mere fact however that the Court issued a telegram to the Commissioner does not prove that the Court intended to grant an adjournment and the lower appellate Court may have been perfectly right in holding that the trial Court had not acted irregularly in refusing to wait for the return of the commission in spite of the fact that the Commissioner had fixed a date for the evidence of this witness which was actually later than the date for the final disposal of the suit. When the suit was disposed of that date 'had not been intimated to the Court, and all that was known was that the Commissioner had apparently been told in the telegram of the Court to fix a later date.

5. It is therefore not clear that the Munsif acted irregularly, and I should not be justified in interfering on this ground either. The result is that the application fails and is dismissed with costs.


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