1. This Second Appeal arises out of a suit to recover some land with profits.
2. The suit was filed in 1920, written statement was filed and issues, were framed in October 1920. A commissioner was appointed to take a plan of the disputed locality. The commission was returned in March 1921. The suit was adjourned to 9th June. On account of the Judge's absence on casual leave it was adjourned to July. As plaintiff's witnesses did not come on that day it was adjourned to 5th August. It was then adjourned to 6th August on account of other works of the Court. On the 6th of August it was reached at 5 p. m, and as other work of the Court was not finished it was adjourned to 1st September. On 1st September it was adjourned, to the 8th of September at the request of the plaintiff's vakil, It was then adjourned to 8th October on account of part-heard suits. On the evening of the 7th October a representation seems to have been made by the defendant's vakil saying that he could not go on with the case and an adjournment seems to have been resolved upon. On the 8th it was actually adjourned to the 11th. On the 11th the plaintiff's wit nesses were not present and he filed a petition for adjournment. This petition was rejected and the suit dismissed. In his order on this petition the District Munsif states : 'It appears to me that he had not any witnesses even that day (i. e., 8th October.)' This inference he makes from the fact that the plaintiff did not produce his witnesses for being bound over by giving muchilikas undertaking to be present on the 11th. But if there is one thing clear in this case it is this namely, that 7 witnesses were actually present on the 8th of October. 'Whether the plaintiff's conduct in the case may be said to be negligent or not, this one fact cannot be gainsaid, because not only he stated in his affidavit for the adjournment petition and in his affidavit with the review petition I. A. 910-21, in his affidavits filed before the High Court dated the 15th of March 1923 'and also in the vakil's affidavit dated July 1923, but it has never been contradicted by the opposite side up to this date : on the other hand it has been practically conceded in the affidavits of the defendant.
3. Now, as to the statement of the District Munsif that on the 8th he called upon the plaintiff to produce his witnesses but that the plaintiff did not produce them for executing muchilikas, the plaintiff denies this in his affidavit. But it is rather difficult on the plaintiff's denial only to come to the conclusion that the Munsif's statement is incorrect. The question, therefore, resolves itself into this. We have got here a suit for immovable property. From October 1920 up to October 1921 the plaintiff seems to have conducted the case with average diligence ; I do not want to put the case higher than this. It is true one adjournment was due to his witnesses not coming but several adjournments were due to the Court being not ready on account of its other work. Now the plaintiff states in paragraph 2 of his affidavit of 11th October that his witnesses were all farmers and that his vakil represented that 'the posting may be made to a longer date so that the witnesses who were all farmers and just busy with manuring etc., may not feel difficulty.' In paragraph 4 of that affidavit he states that his witnesses went away saying that rain was threatening and told him that if the case is to be posted it may not be posted for at least 25 days. Now that I have come to the. conclusion that the witnesses were really present and it is not a case where there were no witnesses as the Munsif thought. There is no reason to disbelieve these other statements of the plaintiff especially as the vakil states in paragraph 4 of his affidavit, that the plaintiff entertained the belief that the adjournment of 11th October would be granted especially as the previous adjournment was granted at the instancy of the defendant's vakil. It is clear that all these witnesses were not witnesses who were at the beck and call of the plaintiff. They had to be summoned for the July hearing and batta was paid and he says he has to resummon the witnesses. It may be, he thought on the 8th, that to call them for executing muchilikas to be bound over for attendance on the 11th would be inconveniencing them and disobliging them and that' they insisted on a longer adjournment than the 11th. If the witnesses told him that they will not come on the 11th there would be no use in getting muohilikas from them. The plaintiff is a Government servant and there is some difficulty in obtaining leave' to attend to business in Court.
4. It is clear from the history of the case up to now that this cannot be said to be a frivolous case. It is a case in which at least the plaintiff believes he has got something to prove before a Court of law and seek justice and I do not think the opportunity to adduce evidence ought to be refused on account of the solitary failure to produce witnesses for executing muchilikas on the 8th, accepting this statement of the District Munsif. It seems to me that this is not such a kind of misconduct as to deserve a refusal of a trial of his case. There is no question in the case of defendant being, put to such a change of situation as to make it necessary to refuse the opportunity to the plaintiff. See Arunachala Iyer v. Subbammiah A.I.R.1923 Mad. 63. In matters of this kind I think the Courts ought not to be too technical as if one is anxious to find excuse for cutting the work of Courts especially as there has been very little negligence on the part of the plaintiff up to 11th October or practically none. I, therefore, set aside the order of the Court below and remand the case for fresh trial to be disposed of according to law. Costs of the first two Courts to abide the result. But as might be said that the affidavits which have been filed in the Second Appeal might have been filed in the lower appellate Court, I would ask the appellant to pay the costs of the Second Appeal to the respondent. I do not mean by this that the matter in the affidavits in the Second Appeal is absolutely necessary for giving the relief which the plaintiff seeks. In my opinion it might well be given on the materials before the first Court.