1. This appeal arises out of a suit brought in the Court of the Subordinate Judge of Burdwan for setting aside the sale of an entire mehal for arrears of Government Revenue.
2. The plaintiffs and pro forma defendants were aymadars with varying shares in the mehal and the allegation was that the sale was brought about by the fraud of defendant No. 2 himself one of the co-sharers and that he himself purchased the property benami in the name of defendant No. 1.
3. It is not necessary for the purposes of this appeal to go into the evidence on the merits inasmuch as the learned pleader for the plaintiffs appellants admits that he cannot contend that he has succeeded in establishing fraud on the evidence as it now stands, but it is urged that there has not been a fair trial in the Court below and that the case should be remanded for a further hearing on three grounds:
1. That the defendant No. 2 in spite of repeated attempts to procure his attendance for examination before the Court did not appear and that process to compel his attendance was refused by the Court below.
2. That on the day of hearing the lower Court refused a short adjournment to procure the attendance of two mukhtear witnesses whose names were on the attendance list filed by the plaintiffs but who had gone to the Collectorate on some professional business on which they were engaged.
3. That in consequence of this summary closure of their case the plaintiffs' pleaders were unable to cress-examine the defendant's witnesses. A perusal of the order sheet pp. 39-41 of the Paper Book will at once disclose that the appellants' first contention ought to prevail.
4. After numerous postponements on formal applications, proceeding on the first four occasions from the defendant and on the last two from both parties, it was ordered on the 20th December 1904 that the suit be heard on the 1st February 1905 and summons was directed to be issued to plaintiff's witnesses as prayed for including the defendant No. 2, process being at the same time granted to the defendant to bring up certain original documents from the Burdwan Collectorate. It will be observed that the defendant having obtained process against his witnesses on the 23rd November 1904 did not ask for any fresh process against them on this occasion.
5. On the 1st February 1905 the plaintiffs applied for postponement of the case because summons had not been duly served on defendant No. 2 and fresh summons was asked for. As the Court was engaged in other cases and had no time to take up the case, this prayer was allowed and the case postponed till the 23rd March.
6. The substance of the plaintiff's petition and the order passed on it is not entered in the order sheet as it should have been, but it appears that the plaintiff stated that he would deposit process fee afterwards and no order was then made for second summons.
7. It would appear, however, from plaintiff's petition of the 23rd March that process fee was filed in due course and summons duly served on defendant No. 2. That being so there was no laches on the part of the plaintiff and he was entitled to have a warrant on the defendant No. 2 who on the face of the pleadings must be a most important, even if he be a hostile witness.
8. The Subordinate Judge bases his refusal to issue a warrant on the plaintiff's alleged laches prior to the 20th December 1904, but there is nothing to show that there was any laches on his part and if there had been, it was condoned by the orders of the 20th December, when a fresh start was given to both parties to produce their evidence and the first serious stop was taken to bring the case to trial.
9. It is contended by the respondents that the order of the 16th July directing the parties to be ready with their witnesses on the 8th September rendered it incumbent on the plaintiff to apply before that date for summons on any witness he was unable to produce without process, but the form of the order shows that there was no serious intention to bring the case on for hearing on that date and as a matter of fact it was the defendant who obtained a postponement till the 23rd of November on which date both parties agreed to postpone the hearing till the 20th December and the defendant for the first time asked for summons on his witnesses.
10. It is clear, therefore, that the plaintiff would have been fully entitled to have summons on his witnesses on and after the 23rd November and before the 20th December.
11. The question thus arises whether the door was closed to the plaintiff to make any further application on the 20th December. No doubt the Subordinate Judge could have been strictly within the law in refusing further process on that date but as he granted the application of both sides for time and fixed such a distant date as the 1st of February 1905, he apparently felt that it was incumbent on him, as no doubt it was in the exercise of his judicial discretion to give both parties the processes they asked for and having once done so, all previous laches, if there had been any, was condoned. In this view of the matter the defendant No. 2 stands in precisely the same position as the plaintiff's other witnesses. But having regard to the new pleadings and to the fact that defendant No. 2 was the plaintiff's principal opponent in the case, the plaintiff might very well be pardoned if he had not made up his mind to take the risk of bringing his adversary into the box as his own witness until a late stage of the case, and even if he had been legally out of time it would have been a sound discretion on the part of the Subordinate Judge to compel his attendance in the peculiar circumstances of the case.
12. But in the view we take of the case we must hold that the plaintiff was within time and that he was titled to have the defendant No. 2 produced by second summons after the first has proved infructuous and by warrant when the defendant No. 2 had refused to obey the second summons. It was laid down long ago in a series of decisions of this Court that every Court is bound to render all reasonable assistance to a party to enforce the attendance of his witnesses ; see Nilmonee Banerjee v. Shurbo Mungola Debee 6 W.R. 14. A party is entitled at any stage of the case before hearing to apply for a summons to cite witnesses without reference to the number of such applications which he may have previously made, and it is the duty of the Court to comply with such application, if any time be left before the hearing of the cause: Onooroop Chander Mookerjee v. Heera Monee Dossee 11 W.R. 418, Huree Dass Bysack v. Meer Moazzum Hossein 15 W.R. 447, Indra Chunder Babu v. Dunlop 9 W.R. 530, Pearee Mohan Mukerjee v. Madhub Chunder Ghosal 9 W.R. 489. As regards the application for warrant, it is sufficient to refer to the case of Rajoo Singh v. Lalla Balgobind Lall 1 W.R. 26, where it was laid down that, an application being made for issue of process against an absconding witness, the Court, if satisfied (as it was found to be) that the witness had absconded and that he was a material witness, ought to grant the application unless the applicant had placed himself in such a position by his conduct that it would be inequitable to grant it. These cases are all under the old Code of 1859, but they have never been doubted nor dissented from, and in all cases where the principles therein laid down have been departed from in practice, it has been in the exercise of a proper discretion on the-part of the Court on proof of laches on the part of the parties. Here there was no reason whatever for departing from these principles, the applications for summons and second summons being made and the process fee filed within ample time to secure service before the date of hearing, and the application for warrant being accompanied by a clear allegation that the witness who was a hostile defendant had refused summons when duly served.
13. The Subordinate Judge could make any enquiry he liked as to the grounds the plaintiff had for stating that the defendant was deliberately avoiding process Periyanna Chetty v. Govinda Goundan 5 M.H.C.R. 104 but no fromal, investigation was necessary, and in this case the return of the second summons itself gave ample grounds for the issue of further compulsory process. We are, therefore, of opinion that the plaintiff is entitled to have the case re-heard on the first ground taken by him. As regards the second ground, he had no right in strict law to have 1 hours adjournment which would practically have amounted to 3 days postponement, but the Subordinate Judge would have exercised a wise discretion in arranging the hearing, as he might easily have done, so that the mukhtears who attended at the first hour should be examined and let go. A reasonable latitude should always be given for the convenience of professional men who have their own duties to attend to in other Courts and cannot dance attendance all day on the chance of being called as witnesses. We, therefore, think that as the case has to go back, the mukhtears Etrat Husain alias Firu Nedan and Shoshi Bushan Chowdhury should also be examined. As regards the third point, the plaintiff's pleaders practically abandoned the case and never closed the plaintiff's case at all when they found he was hopelessly debarred from proving his allegations and there was, therefore, no cross-examination of defendant's witnessess. As we have found that the Subordinate Judge was in error in allowing defendants to open their case before plaintiff had had an opportunity of examining some of his witnesses, it follows that the defendant must be allowed to re-open his case after that of the plaintiff is closed, and when he does so, it will be open to the plaintiff to cross-examine them. Neither party, however, should be allowed to bring fresh witnesses who were not named at the original hearing before the 24th March 1905. We accordingly remand the case to the lower Court under Section 568, Civil Procedure Code, to take the evidence we have directed and to return the record with the evidence so recorded to this Court within one month.
14. Under the circumstances of the case both parties will bear their own costs of this hearing.