1. This is another illustration of what happens when parties do not appear at the time they ought to appear through their own fault or the fault of their legal advisers. A strong case for the plaintiff was put before the learned Judge. Defendants 2 and 3 did not appear owing to a mistake of their Vakil and owing partly to their not having received a telegram which had been sent by their Vakil in such time that, if it had been received in the normal course, he would have got them here on the second day of the hearing. Under those circumstances, in my Judgment, it is not right that they should be penalised to the extent of the case being decided against them without their being heard. It is contrary to principles of natural justice that cases should be decided on the hearing of one side only if the other side is ready and willing to be heard. In such cases, as a rule, adequate punishment is to be found in the remedy of costs, which not only penalises the party in default but, theoretically at any rate, indemnifies the other party from the expense which he has been put to by reason of that default. In these circumstances, in this case, there must be an order setting aside the decree and sending the case back for rehearing. The costs of the first hearing awarded against defendants 2 and 3 must be paid by them, in any event of the rehearing. The amount paid into Court and security given will remain pending the rehearing of the suit. Application can be made by the plaintiff to the Original Side, if it is desired, to use the evidence already on record and to adduce further evidence. The evidence to be called on behalf of defendants 2 and 3 will be limited to their own evidence and that of the two attestors to the partition deed. The appellant will get a refund of the Court fees paid by him for this appeal.
2. I agree.