1. This is an application by the plaintiff in a title suit under the provisions of Section 115, Code of Civil Procedure, asking that the order of the learned District Judge of the Assam Valley Districts as well as the order of the Munsif of Gauhati should be set aside, on the ground that they have improperly exercised the discretion vested in them by law. The suit that had been instituted by the plaintiff was apparently, what is called, set down for hearing. That, I take it, means, appeared in the peremptory list of causes for disposal in the Primary Court on the 19th April 1916. The case without being formally before the Judge was adjourned on the ground that the witnesses were not available that day. That is a common form of application in the Courts of any country and it is not unknown in the Courts of this country. I have seen hundreds of applications like this--perhaps more. The case was accordingly directed not to appear in the list until the 16th May 1916. On the 16th May 1916, the case again appeared in the list of causes for disposal by the learned Judge of the Primary Court and a further application was made by the petitioner's Pleader for postponement, on the ground that the plaintiff could not attend owing to his illness. That application was refused by the Munsif, and the case, I suppose, being reached in the ordinary course, was dismissed. Then, on the 8th June 1916, an application was made to the learned Judge of the Primary Court under the provisions of Order IX, Rule 9, Code of Civil Procedure, to set aside that order of dismissal. It is said that the learned Munsif, who was the Judge in the Primary Court, dismissed that application summarily without recording any evidence, Thereupon, an appeal was preferred against that order to the learned District Judge, asking him to review the reasons that had been given by the Munsif in dismissing the application under Order IX, Rule 9, Code of Civil Procedure, summarily. The learned District Judge considered the application as an application under Order XVIT, rule 3, of the Code, holding that the suit had been decided within the meaning of that rule. Of course, nobody on either side suggests that such a view is capable of being supported. No evidence had been recorded j no pleadings had been opened. Judicially, the learned Judge in the Primary Court was ignorant of what the suit was brought for and what was the evidence the parties were going to adduce in support of or against the case. It is quite clear in a case like this that the learned Judge of the Primary Court could not have decided the suit forthwith as mentioned in Order XVII, Rule 3, Code of Civil Procedure. The application was clearly an application within the terms of Order IX, Rule 9, Code of Civil Procedure, and the case ought to have been decided on that footing. The question, is `what ought we to do now'? It is quite clear that the judgment of the learned Judge of the lower Appellate Court cannot stand. That has not been sought to be supported by anybody except the learned Vakil of the defendant, who says that the learned Judge expressed an opinion on the merits. He has made some observations on the merits; but he has not found whether the absence of the plaintiffs was or was not due to a sufficient cause, which, after all, was a material matter for consideration as the application was made on the ground that the plaintiff was ill of course, in these applications for postponement, the grounds set forth of some illness or some domestic tragedy in the family are not always found to be accurate. I have tried many cases where postponement was sought for on the ground of the death of a member of the family. In one of these cases, the person said to have died was seen walking along the Post Office Street about the time of the hearing of the application. Other applications, of similar nature have been made to other Courts also. But still the case has got to be disposed of on the evidence, and not on the view of the learned Judge as to whether these applications are bona fide or not.
2. The Rule is also directed against the order of the learned Judge in the First Court, dated the 2nd September 1916, by which he summarily rejected the application under Order IX, Rule 9, Code of Civil Procedure. The learned Judge observed that he was not going over the same grounds again. Of course, an application under Order IX, Rule 9, Code of Civil Procedure, must be disposed of on the evidence after it has been properly recorded. Whether the procedure of the Court is to take the evidence viva voce or by affidavit, the Court must deal with an application like this after the evidence is taken. The learned Munsif's view that he was not going over this matter again because it was really the same ground that was urged by the Pleader on the former occasion, cannot be supported. I think we must set aside the orders both of the learned Judge of the First Court, dated the 2nd September 1916, and of the District Judge, dated the 25th January 1917, and send the case back to the First Court in order that the learned Judge in that court may proceed to hear and determine the application under Order IX, Rule 9, Code of Civil Procedure, on the evidence that may be adduced by the parties before him. The opposite party must pay the costs of the petitioner in this Rule. We assess the hearing fee at one gold mohur.