Lawrence Juenkins, C.J.
1. This is an appeal from a decision of Mr. Justice Vincent affirming the decree of the lower Appellate Court, with the result that the plaintiff's suit stands dismissed.
2. Two objections were taken before us on behalf of the plaintiff; first, it was said that there was improper reception of evidence inasmuch as the map prepared by Mr. Billon was admitted. But, in our opinion, that map was admissible, if not under Section 83, still under Section 13 of the Evidence Act. The value to be attributed to it, when admitted, was a matter to be determined by the Court of fact: so that had matters rested there, we should not have interfered with the decree of the lower Appellate Court. But there is an incident in the case which certainly calls for interference on the part of this Court, and it is this: The plaintiffs were desirous of establishing their possession of the land in suit and it was obviously most material for them to be able to prove that possession. For the purpose of proving that, they desired to call as a witness a servant of the Municipality and to require him to produce certain documents which, they maintained, would go far to show that their contention as to their possession was correct. They made repeated attempts to procure the evidence of that witness: but he absolutely failed or declined to attend. In those circumstances, the plaintiff not unnaturally asked the Court to take measures to compel his attendance, by arrest if necessary. For some reason, which does not appear satisfactory to me, the Court of first instance refused to take this measure. We have asked the learned Pleader who appears on behalf of the defendant Municipality how it was that a servant of the Municipality should have acted in this way and should have practically set the summons of the Court at defiance. He was unable to give any explanation. I can see nothing to excuse such conduct. If, as has been suggested, it was in any way due to the Municipality itself, I need hardly say that it would be most reprehensible conduct. But we are not in a position to form an opinion as to the responsibility of the Municipality although that is the statement made before us.
3. In the circumstances of the case, the proper course will be to set aside the decrees of the lower Appellate Court and of the Court of first instance and to send back the case for re-hearing and determination, when the attendance of this witness has been compelled, with the production of the documents that were required from him for the purposes of this case.
4. The Municipality must pay the appellants' costs up to the present time.
D. Chatterjee, J.
5. I agree.