1. This is an appeal from an order of the District Judge of Darbhanga, refusing an application of the petitioners, under Section 103 of the Civil Procedure Code. The learned Judge appears to have held that the plaintiffs did appear on the 27th July 1908 before him and he appears to have followed the ruling reported in Rampertab Mul v. Jakeeram Agurwallah 23 C. 991 and held that the suit was liable to dismissal under Section 158. It is settled law and we need only refer to the case of Mariannusa v. Ram Kalpa Gorain 34 C. 235 : 5 C.L.J. 260 as one of the numerous cases which have laid down the law that when at an adjourned hearing of a suit the witnesses on behalf of a party are not in attendance and the party applies for the issue of a warrant against any one of them, the Court refused the application arid the pleader thereupon intimated that he has no further instruction to appear and the suit is dismissed, that the dismissal is not under Section 158 of the Code but under Section 102. It is true that in this case so far back on the 28th of April 1908, the first date fixed for hearing, there was on the part of the plaintiffs a certain amount of neglect which had compelled them to ask for time, and if it were shown by evidence that after that they had also neglected to have the processes issued and to take other steps necessary for the advancement of the case, it is then conceivable that they might have had their suit dismissed under Section 158 at one or other of the hearings. But under the ruling we have cited such a penalty will not accrue on the 27th July 1908, inasmuch as on that date processes had been issued on their witnesses and served upon them and as they had not appeared they applied for time and for warrants. Their own allegation which is supported by their petition and against which no evidence appears to have been given is that after their application for the issue of summons with process-fees on the 28th April 1908 and the adjournment of the case to the 26th May 1908, no processes were issued by the Court and we find from the order sheet that on the 26th May 1908 they did not apply for fresh summons but that they applied for issue of summons which would bear out what they have stated. The date was now fixed for the 30th June 1908. It is clear that summonses were not issued in the ordinary course for we find that on the 16th June 1908, they came to Court and pointed out that summonses were not issued whereupon there was an order that they should issue and on the 30th June, the summonses were returned unserved, and the 27th July was fixed for the hearing and fresh summonses had to be issued. On the 2nd July the case was transferred to the file of the District Judge and we may, therefore, take that he was not personally acquainted with the facts of the case, beyond what appeared in the order sheet of the Subordinate Judge. Be that as it may, on the 27th the second summons had been served but the witnesses did not appear. Warrants were applied for and as the plaintiffs' laches, if there had been any, had certainly been condoned, the refusal to issue warrants and grant time and the consequent non-appearance of the plaintiffs would undoubtedly fall under Section 102.
2. With regard to the learned Judge's decision on the merits he says that If the section is applicable, I do not think that any sufficient cause for non-attendance has been made out. Applicant's proceedings throughout has been marked by dilatoriness and negligence and the case could not be prolonged further on no better grounds than were forthcoming'. As we have already said we do not see on what materials the learned Judge came to this conclusion. A view of the order sheet would leave the matter entirely in the dark. The only allegation of the petitioners which is not in any way supported by the order sheet is that no processes were issued up till the 26th May owing to the neglect of the Court officers after that the order sheet indicates that the course of events was as the petitioners now contend. We, therefore, think that there should be a re-hearing of the application under Section 103 and that the petitioners should be allowed to produce evidence in support of their contention and the other side will be allowed to produce rebutting evidence.
3. We, therefore, set aside the order of the District Judge and direct that the case be remanded to the lower Court to be dealt with as indicated in our judgment.
2. Costs will abide the result.
3. There are two parties who appeared as objectors in this appeal and who apparently will be concerned in the case when it comes to be re-heard. They are entitled to their hearing fees in this Court which we fix at one gold mohur for each of the parties. This also will be a portion of the costs in the lower Court.
4. The District Judge will find out whether the adjournment costs are still unpaid by the petitioners and of course it will be a condition precedent to his re-hearing the case that those adjournment costs be paid.