1. This appeal arises out of a suit on a mortgage-bond.
2. The plaintiff's claim was decreed in full by the Munsif but was reduced by the lower Appellate Court. The plaintiff has appealed to this Court.
3. The only point to be considered in this appeal is, what would be the effect of the nonappearance of the plaintiff No. 1 after an order by the Court for his appearance.
4. The plaintiff applied to be examined by commission. Against that application, the defendant filed a petition supported by an affidavit, asking that the plaintiff's request should be refused and that the plaintiff should be directed to appear in person for examination.
5. The Court passed the following order:
6. 'Plaintiff's prayer for his examination is disallowed as prated for. The plaintiff No. 1 must come to Court personally.' This order was passed on the 20th Marsh. On the 5th April, the suit was transferred to another Munsif for trial and was heard and decided on the 11th May 1917. The plaintiff No. 1 did not appear in person at the hearing.
7. The learned District Judge has held that on account of the plaintiff's non-appearance, Order IX, Rule 1'2, comes into operation and that the lower Court had no option except to decree the suit only so far as the plaintiff's claim is admitted. In our opinion this cannot be upheld.
8. Order IX, Rule 12, provides that where a plaintiff, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he should be subject to all the provisions of the foregoing rules applicable to plaintiffs who do not appear.
9. The Court of first instance took no action in consequence of the failure of this plaintiff to appear. Had it done so, it might have held that sufficient cause had been shown for his non-appearance and not thought it necessary to render him subject to the provisions of any of the foregoing rules of Order IX. But assuming that one of those rules should be applied, it appears to us that the rule applicable is not rule but Rule 10.
10. Rule 10 provides for the case where there are more plaintiffs than one, as in the present case, and one or more of them appear and others do not appear. Rule 8 provides for what should be done when the plaintiff does not appear. Reading these two rules together, it seems that Rule 8 is meant to provide for the case, where there is a single plaintiff or where all the plaintiffs, if there are more than one, do not appear. If Rule 10 be applied, the Court has discretion to permit the suit to proceed in the same way as if all the plaintiffs had appeared.
11. In the present case the first Court did proceed with the trial of the suit as if all the plaintiffs had appeared. Consequently, there is nothing illegal in its order decreeing the suit in favour of both the plaintiffs, nor does it appear from anything that has been urged before us that in so proceeding the Munsif exercised any improper judicial discretion. We hold that the lower Appellate Court was wrong in applying Rule 8 of Order IX.
12. The judgment and decree of the lower Appellate Court are set aside and the case remanded to that Court for the appeal to be heard on the merits.
13. Costs to abide the result.