Sri Prabhu v. Dwarka Prasad Opposite Party.

1. This is an application to set aside an order by the District Judge of Muzaffarpur, entertaining an appeal against an order of the learned Munsif dismissing a suit under O. 9, R. 12, as read with O. 9, R. 8. There were three plaintiffs to the suit. In the course of the trial the defendant asserted that he wished to examine one of them as a witness in the case and rely upon his oral evidence. Upon this the learned Munsif ordered that the plaintiff should appear in person. He failed to do so, and the suit was dismissed.

2. In appeal the learned District Judge pointed out that the learned Munsif's order directing the plaintiff to appear in person was not an order such as is contemplated by O. 10, R. 4, and that therefore the order made dismissing the suit was not a good order under O. 9, R. 12, and could not be supported. He further held that inasmuch as one of the plaintiffs only was directed to appear, the suit could not be dismissed as against all the plaintiffs. On the first part of this decision it is clear that the learned Judge lost sight of the provisions of O. 3, R. 1, which directs that any party may be directed to appear in person O. 9, R. 12, clearly refers to an order made under O. 3. R. 1, for the penalties to be incurred on failure to obey an order under O. 10, R. 4, are set forth in O. 10 itself. The learned Munsif therefore had jurisdiction to direct he plaintiff to appear in person and had also jurisdiction to dismiss his suit if the failed to do so. The order dismissing the suit against the plaintiff who was directed to appear in person could not have been rightly attacked in the District Court and indeed no appeal lay to that Court. The order however dismissing the suit as against the remaining plaintiffs was clearly made in contravention of O. 9, R. 10. The two plaintiffs who had not been directed to appear in person had signed a vakalatnama directing their pleader to appear for them and that pleader was present on the day of hearing, and had filed on behalf of the plaintiffs a list of witnesses to be examined.

3. Even therefore if the learned Judge had no jurisdiction to entertain an appeal against this part of the Munsif's order, we are of opinion that in so interfering he has done substantial justice and if that order had not been made we ourselves would have made it under S. 115 of the Code. We therefore see no reason to interfere with the Judge's order directing that the suit be continued on behalf of the two plaintiffs who were not ordered to appear in person but we set aside that part of the Judge's order which permits the continuation of the suit by the plaintiff who was directed to appear in person.

V.S/R.K

4. Order varied.