M.C. Ghose, J.
1. This is an application under Section 115, Civil Procedure Code, by the plaintiff in a title suit. The plaintiff's case is that in June, 1931, the plaintiff instituted a suit against the defendants for declaration of her title to a plot of land with huts thereon and for recovery of possession of the same, that defendants Nos. 1 and 2, mother and son, entered appearance, filed their written statement on August 15, 1931, and thereafter the suit went on for a long time on adjournments till on April 26, 1932, the Court warned the parties to come ready on the next date when the case would be positively heard and the next date fixed was June 8, 1932; that on June 8, 1932, the plaintiff was ready with her witnesses and defendant No. 2 along with his junior Pleader was present but they did not file any list of witnesses, although some of the defence witnesses themselves filed their hajiras; the defence prayed for one day's time on the ground that their senior Pleader was engaged at Dacca and would not be able to come till 3 p.M. The learned Munsif-rejected the prayer fqr a day's adjournment bat adjourned the hearing till 2 p.m. There after at 2 p.m. on that day the case was taken up and one witness for the plaintiff was examined. The defendants were asked to crossexamine the witness, but the Pleader declined to cross examine and, filed a petition praying for ah adjournment till the following day. The Court refused the praj er for adjournment and examined another witness apd decreed the suit ex parte. On the following day a petition was filed on behaltof the defence praying that the order of the previous day might be set aside and the suit restored for fresh hearing.
2. After hearing ?he parties, the learned Munsif by his order dated November 30, 1932, set aside the order of June 8 and restored the suit for fresh hearing. The Munsif look his action under Order XLVII, Rule 1, Civil Procedure Code on the ground that the Court had committeed an error apparent on the face of the record inasmuch as the Court in passing the judgment did not take into CDnsideratidn the evidence which had been taken on commission and which was upon the record. The Court considered that the order passed was under Order XVII, Rule 3, Civil Procedure Code. It is urged by the learned Advocate for the petitioner that the order of the Court was passed not under Order XVII, Rule 3 but under Order XVII, Rule 2 and as such the Court was not justified in reviewing the said order; but the defendants might have filed a case under Order IX, Rule 13 if they had been able to show that they had a sufficient cause for default; and in the second place it is urged that even if it be considered that the case was under Order XVII, Rule 3 the learned Munsif acted illegally in allowing the case to be restored.
3. Upon hearing the learned Advocates on both sides who have placed the entire record before the Court, it appears that in fact the learned Munsif passed an order on June 8, 1932, under Order XVII, Rule 2; but when the review application was filed, heiconsidered, he dealt with the case under Order XVII, Rule 3, and even when he dealt with the matter under Order XVII, Rule 3, it does not appear that the defendants were justified in asking for review. Their action should have been taken uiider Order IX, Rule 13, see Kristo Kishore Bose v. Pancharam Maity : AIR1928Cal341 , where Sir George Rankin the learned Chief Justice, has explained the matter very fully. In the next place assuming that ihe order passed by the Munsif was under Order XVIL, Rule 3, it is to be considered whether he was right or committed an error apparent on the face of the record in not accepting the evidence taken on commission. On this point it is urged on the side of the petitioner, that under the provision of Order XXVI, Rule 8 the evidence taken on commission shall not be read as evidence in a suit without the consent of the party against whom the same is offered unless such conditions are fulfilled. It is clear, therefore, that the evidence taken on commission does not ipso facto become an evidence in a case. It has to be offered by the party who has examined the witness on commission and it, has to be accepted by the Court after hearing the opposite party and unless it is tendered by the party and accepted by the Court it is not to be considered as evidence in the case: see the case in Kristo Kishore Base v. Pancharam Maity 111 Ind.Casa. 430 : A.I.R. 1928 Cal. 348 : 47 C.L.J. 467, already referred to and also the:caseof Mahim Chandra Guha v. Naba Chandra : AIR1927Cal43 .
4. In this case six persons had been ex-mined on commission on behalf of the defence and those witnesses proved certain documents but those were not offered in evidence by the defence before the Court. Indeed, as the learned Advocate for the petitioner has stated, the junior Pleader for the defence pleaded that he was not in a position to conduct the case and the senior Pleader who alone was said to know the facts of the case and used to look after the case on behalf of his sister, defendant No. 1, and on behalf of her son, defendant No. 2, was absent at Dacca on professional engagement. There was a local Pleader and defendant No. 2 present in Court. But the pleader when asked to cross-examine the plaintiff's witness declined to do so. Indeed he professed to be unable to give any assistance to Court and he did nothing except filing two applications for ad journment and defendant No. 2 stated in the petition that he was not cognizant of many facts and was not conversant in mak ing tadbirs; that as a matter of fact no one but his maternal uncle Babu Rebati Mohan Ghose, Pleader, Dacca, knew all the facts of the case. Apparently the defendants took up the position that they could do nothing until Rebati Babu returned from Dacca. In these circumstances they did nothing to assist the Court, and without the evidence taken on commission being presented to Court 'and consented to by the plaintiff or accepted by the Court without the consent of the plaintiff, it could not be taken as evidence in the case. In this viewthere was no error apparent on the face of the record.
5. The learned Advocate for the petitioner has also placed for consideration two unreported cases: In the matter of Mongal Chand Dudhuria, Civil, Revision Case No. 1297 of 1929 and In the matter: of Abdul Khaleque, Civil Revision case No. 1157 of 1932 in both, of which in similar circumstances this Court set aide the restoration of suits. Having regard to the circumstances of the case, I am of opinion that the order of the learned Court below was illegal. It is accordingly set aside and the order of June 8, 1932, is restored. The Rule is made absolute. The petitioner is entitled to her costs, hearing fee being assessed at two gold mohurs.