1. In answer to the queries referred to this Court by the Munsif of Julpigoori, we are of opinion:
(1) That, under the new Civil Procedure Code (Act X of 1877), when the plaintiff appears and the defendant does not appear, the proper procedure is that prescribed by the 100th section of that Code, whether the defendant has been summoned only to appear and answer the claim, or has, in addition, been summoned to attend and give evidence.
(2) That it is not necessary, before proceeding to hear the suit ex parte under Section 100, that all the process prescribed by law for compelling the attendance of the defendant as a witness should be exhausted. It is sufficient that the service of the summons upon the defendant is duly proved. If such proof is not given, the courses to be adopted are one or other of those mentioned in clauses (b) and (c) of Section 100 according to the circumstances of the case.
2. With reference to the statement of the Munsif, that he has directed this case and the six hundred and twenty-nine analogous cases to be dismissed, subject to the opinion of this Court on the two questions above answered, we would point out that, having regard to the facts stated in the reference, and the proceeding of the 21st of September which are incorporated with it, the reply which this Court has given to the above questions does not justify the Munsif in directing the dismissal of the suits.
3. The proper time for determining whether the plaintiff offers, or can offer, sufficient evidence to warrant a decree in his favour is, not when the duplicate plaint is filed, but after a summons to appear and answer the claim has been served upon the defendant, and the case comes on in due course for its first hearing. If the case is then ripe for proceeding with ex parte under Section 100, the plaintiff is entitled to succeed if he gives prima facie evidence in support of his claim.
4. The bonds having been destroyed by fire without any default of the plaintiff, secondary evidence of their execution and contents is the only evidence which it is in the power of the plaintiff to produce.
5. One of the classes of the secondary evidence of a document is oral evidence (Section 63, Clause 5 of the Indian Evidence Act). Although the register in a tabular form, which is referred to in the proceedings of 21st September 1878, may not be in itself secondary evidence, yet it may be a document with which a witness may refresh his memory under Section 159 of the Indian Evidence Act; and, if so, he may be able by the aid of the register to give evidence both as to the execution and contents of the bonds upon which the Court can act and pass a decree in favour of the plaintiff.
6. Having regard to the above observations, the Munsif will probably think it proper to review his directions regarding the dismissal of the suits, and give the plaintiff a reasonable opportunity of producing proof in support of his claims. The plaintiff is placed in a position of peculiar difficulty in consequence of the disastrous fire that has taken place, and is fairly entitled to the consideration of the Court.