1. This appeal is directed against an order of the Subordinate Judge of 24 Perganas dated 29th August 1930 by which he returned the plaint of the plaintiff, now appellant, in a partition suit valued at Rs. 3,80,101 to be filed in the proper Court. He made the order in the absence of the plaintiff' and held on such materials as had been put before him by defendant 6, Raja Promatha Bhusan Deb Ray of Naldanga, that the Alipur Court had no jurisdiction to entertain the suit as none of the properties which formed the subject-matter of partition lie within the jurisdiction of that Court. Hence the present appeal.
2. Two questions have been debated before us in the appeal: (1) whether the Subordinate Judge should have proceeded to deal with the suit under the provisions of C.17,R.2 instead of proceedings under Order 17, Rule 3, Civil P.C.; (2) whether the materials before the Court were sufficient to justify the conclusion that the Alipur Court had no jurisdiction to entertain the partition suit. (After stating the case of plaintiff and that of the defendant as given in the plaint and written statement, the judgment proceeded). Several issues were framed. It is necessary to notice issue 1 which runs as follows: 'Has the Court jurisdiction to try this suit,' On 10th June 1930 defendant 6 put in a petition praying for decision of issues 1 and 2 first. Issue 2 related to the insufficiency of court-fees. On 20th June the Court ordered that the issue of jurisdiction and court-fees should be taken up first, and fixed 29th July 1930 for hearing of those issues and directed the parties to come with evidence on that date. On 21st August the defendant was ready with his witnesses on the question of jurisdiction but plaintiff was not ready and the Court adjourned the hearing of the issues to 29th August and remarked that as the case was more than eight months old no further adjournment would be given and directed the payment of adjournment costs to defendant. On 29th August plaintiff did not appear and did not pay the adjournment costs. The defendant was ready with his witnesses. In the meantime some of the witnesses had been examined on behalf of the defendant and the learned Judge passed a cryptic order to the following effect:
From the evidence taken on commission it appears that this Court has no jurisdiction to go on with the case. Ordered that the plaint bo returned to the plaintiff's pleader for presentation in the proper Court,
3. The plaintiff has preferred the present appeal and two points have been taken on behalf of the appellant: (1) that the Court should not have returned the plaint but should have dismissed the suit altogether as plaintiff was absent and the provisions of Order 17, Rule 2 of the Code applied; (2) even if the provisions of Order 17, Rule 3 applied the evidence does not justify the conclusion that the Subordinate Judge had no jurisdiction to try the suit. With reference to ground 1 taken it is said that as the plaintiff was absent and did not produce the evidence on the point of jurisdiction the proper rule applicable was Order 17. Rule 2. and not Rule 3 and in support of this contention reliance has been placed on a number of authorities. There is a conflict of authorities on this point in different High Courts in India. The High Court of Madras has held that the Court should in such a case proceed under Rule 2 and dismiss the suit for default so that the plaintiff may have an opportunity to apply under Rule 9, Order 9 to set aside the dismissal: Pichamma v. Sreercmulu (1918) 41 Mad 286. The High Court of Bombay takes the same view. In Allahabad the balance of authority is in favour of this view; Ganesh Lall v. Debi Das : AIR1925All267 . The Patna High Court has held that this rule does not apply unless the hearing is commenced: Mahabir v. Sheo Dayal AIR 1928 Pat 167. The Lahore High Court has held that if there are no sufficient materials the Court should proceed under Order 17, Rule 2; otherwise if there are materials the Court should proceed to determine the matter: Jhanda Singh v. Sadek AIR 1924 Lah 545. The respondent has relied strongly on a decision of this Court in the case of Enatulla v. Jiban Mohan Boy AIR 1914 Cal 360, where it has 'been pointed out that in a case where there are no materials on the record the proper procedure to be followed would be that laid down in Rule 2; but if there are materials on the record the Court ought to proceed under Rule 3. To apply the procedure laid down in Rule 3 to a case there must be the presence of both the elements, viz.: (i) the adjournment must have been at the instance of a party; and (ii) there must be materials on the record for the Court to proceed to decide the suit. The presence of one without the other does not justify the application of Rule 3. In an earlier case Mariannisa v. Ram Kalpa (1907) 34 Cal 235, Mukherji and Holmwood, JJ., held that the scope of Section 157 of the Code of 1882 which corresponds to Order 17, Rule 2 was distinct from that of Section 158(O. 17, Rule 3), but that the Court can act under Section 158 even though the parties are absent if the requirements of Section 158 are satisfied. In my opinion this seems to be the correct view with reference to the scope of these two rules. Although therefore the plaintiff was absent on 29th August to which date the suit was adjourned at his instance for producing witnesses for the decision on the question of jurisdiction it was open to the Court to proceed to determine the question of jurisdiction on the materials put before it by defendant 6, and Order 17, Rule 3 properly applies to the present case.
4. We now proceed to deal with ground 2, namely, that the Court should have held that the Alipore Court has jurisdiction to entertain the suit. It is argued that in arriving at the conclusion that the Alipore Court has no jurisdiction the Subordinate Judge has relied on evidence taken on commission which was never read before the Court and was not formally tendered at the trial. The answer to this contention is that regard being had to the practice of the mofussil Courts, which is not only consistent but is also in strict accordance with the provisions of the Code, it is not necessary to tender the evidence taken on commission formally at a trial to make it evidence in the case: see Dhanuram v. Murali (1909) 36 Cal 566. We are therefore of opinion; that there is no substance in this point. (After discussing the evidence, the judgment concluded). In this view we are of opinion that the decision of the Subordinate Judge is right and this appeal must be dismissed but in all the circumstances there will be no order as to costs.
M.C. Ghose, J.
5. I agree.