1. On 18th June 1907, the plaintiff instituted two suits for possession of land on declaration of their title thereto, mesne profits, and other relief.
2. For reasons which need not now be considered the suits did not come on for hearing for over two years.
3. On 9th November 1911, the suits were on the defendants' application adjourned to 28 tit November. As the plaintiff appears to have had some witnesses present in Court the defendants were ordered to pay the costs of that adjournment.
4. It appears clear that the oral testimony of those witnesses for the plaintiff was not considered sufficient to establish his case as we find that on 20th November 1911 on the application of the plaintiff a robokari was sent to the Collector of Dacca to send certain record's. On the same day the defendants made a similar application and a robokarL was also sent at their request. On 28th November 1911 the records had not arrived; and it appears that the plaintiff was notable to make out his case without them. He applied for an adjournment which was refused. The Munsif then passed this order in each suit:
As there is no evidence on the side of the plaintiff and some of the defendants, and though other defendants are rea'dy but adduce no evidence, let the suit be dismissed.
5. The plaintiff applied to the Subordinate Judge who held that no appeal lay on the ground that the order of the Munsif was not a 'decree'. It was argued for the respondents that it was an order under Order XVII, Rule 2 but that cannot be as it was passed in the presence of the plaintiff and his Pleader. There is nothing to indicate that on the application for adjournment being refused, the plaintiff or his Pleader withdrew from either suit and allowed the order to go ex parte.
6. Then it was suggested that in these cases time had not been given to the plaintiff as on 9th November 1911 the suits were adjourned on the application of the defendants.
7. It is unnecessary to discuss whether it was an order under Order XVII, Rule 3 or not. It was undoubtedly a-final decision of the suit so far as the Munsif was concerned and the order in eash case was a 'decree' irons which an appeal lay to the Subordinate Judge.
8. It was not the less so because the suits were dismissed inconsequence of the plaintiffs failure to produce evidence, see Kartick Ghindra Pal v. Sridhar Mandal (3).
9. The orders of the lower Appellate Court must be set aside and the cases remanded to that Court for disposal of the appeals, upon the merits The costs of these appeals to abide the result.