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Satindra Nath Banerjee and ors. Vs. Kumar Banwari Mukunda Dass Nandy Bahadur and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.568
AppellantSatindra Nath Banerjee and ors.
RespondentKumar Banwari Mukunda Dass Nandy Bahadur and anr.
Excerpt:
civil procedure code (act v of 1908), section 115, order ix, rule 8 - government of india act, 1915, (5 & 6 geo. v, c. 61), section 107--suit, trial of--commissioner, appointment of--dismissal for default before commissioner makes report, legality of--appeal, whether lies--revision--high court, interference by. - .....by the munsif.2. it is contended on behalf of the defendant-appellant that no appeal lay to the district judge because the order was net one under order xvii, rule 3 of the code and that, therefore, the order of remand made by the district judge was without jurisdiction.3. it appears that the main question involved in the suit related to boundary disputes and two commissioners were successively appointed for laying the boundary. on the 4th january 1916, the court directed the defendant to deposit rs, 150 as additional costs for the fee of the commissioner and the latter was directed to proceed with the work as prayed for by the defendant. the 3rd february 1916 was fixed for the hearing of the case. on the 3rd february the following order was made: 'the pleader takes no steps to-day,.....
Judgment:

1. This appeal is against an order of the District Judge of Burdwan, seating aside an order of the Munsif of Katwa, dismissing a suit for default and remanding the case fur trial by the Munsif.

2. It is contended on behalf of the defendant-appellant that no appeal lay to the District Judge because the order was net one under Order XVII, Rule 3 of the Code and that, therefore, the order of remand made by the District Judge was without jurisdiction.

3. It appears that the main question involved in the suit related to boundary disputes and two Commissioners were successively appointed for laying the boundary. On the 4th January 1916, the Court directed the defendant to deposit Rs, 150 as additional costs for the fee of the Commissioner and the latter was directed to proceed with the work as prayed for by the defendant. The 3rd February 1916 was fixed for the hearing of the case. On the 3rd February the following order was made: 'The Pleader takes no steps to-day, the defendant is present by his Pleader. Pleader is absent at repeated calls. It is, therefore, ordered that the suit be dismissed with costs, Let the Commissioner be informed.'

4. It seems to us that the suit should not have been disposed of in the manner it has been done on the 3rd February 1916. The Commissioner had not finished his work then; and until that was done the suit could not be heard. We do not understand what the Court meant by saying. 'The Pleader takes no step today' (meaning thereby the plaintiff's Pleader) when as a matter of fact the Court had directed the defendant to deposit Rs. 150 being the additional fee of the Commissioner. The order dismissing the suit for default ought not to have been passed on the 3rd February.

5. The order, however, is not appealable, but the respondent before us has put in a petition under Section 115 pf the Code and under Section 107 of the Government of India Act, asking us to exercise our powers of revision.

6. Under the circumstances we think we ought to interfere. The order of the Munsif, dated the 3rd February 1916 dismissing the suit for default is accordingly set aside and the case sent back to the Court of first instance. The suit will be taken up at the stage where it stood on the 3rd February 1916. The Commissioner's work must be proceeded with and finished, and the suit tried in due course of law.

7. This order is made by us in substitution of the order of the District Judge whose order is get aside.

8. Each party to bear his own costs in the proceedings from the 3rd February 1916 up to this date. The future costs will abide the result.


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