Sitara Begam v. Tulshi Singh

Banerji and Aikman, JJ.:— The plaintiff-appellant brought a suit on the 25th of April, 1899, for possession of certain land and for the issue of a mandatory injunction for the removal of a certain building and trees. The 27th of May, 1899, was fixed for the hearing of the case. On that date the defendants filed their written statement, and some documentary evidence was produced by the plaintiff. On the 5th June, 1899, the Court framed issues and made an order for the appointment of a commissioner to prepare a map of the locality. It directed the plaintiff to pay the costs of the issue of the commission within four days. On the 23rd of June, 1899, which was the date fixed for the final disposal of the suit, the case came on for hearing, and it was discovered that the plaintiff had not paid the costs for the issue of the commission as directed by the order of the 5th June, 1899. Thereupon the Munsif recorded the following order:— “In this case the plaintiff was ordered to deposit costs for the and in to prepare the map. The plaintiff has not done so, nor has he explained why it was not done. Orders are passed to be abeyed and not to be disobeyed. The suit is dismissed for want of prosecution. The plaintiff can bring a fresh suit.” The Munsif does not cite the authority under which he acted in dismissing the suit, nor does it appear that he was competent to make the order that the plaintiff can bring a fresh suit. The lower appellate Court was of opinion that the order of the Munsif had been made under section 158 of the Code of Civil Procedure. If this section does not justify the Munsifs order, we know of no other section of the Code which would warrant it. We have therefore to consider whether section 158 justified the action taken by the Munsif. That section provides that “if any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court ma, notwithstanding such default, proceed to decide the suit forthwith.” In this case the plaintiff was granted time to perform an act which the Munsif considered was necessary for the farther progress of the suit. The question is, whether the failure to perform that act entailed under the section a dismissal of the suit, or whether the Court ought to have proceeded to hear the suit in spite of the default. In our opinion what the section provides is, that the mere fact of a party making default in the performance of what he was directed to do would not lead to the dismissal of the plaintiff's suit, if he was the party in default, or the decreeing of the claim against the defendant, if the defendant was the person who made the default. We think that the words “notwithstanding such default” clearly imply that the Court is to proceed with the disposal of the suit, in spite of the default, upon such materials as are before it. Had the intention of the Legislature been that such defualt would entail dismissal in the case of the plaintiff, or the striking but of the defence in the case of the defendant, we should have expected a provision similar to that contained in section 136 or section 120 of the Code. If the Judge's view were correct, what would be the result if default was made by the defendant? Would the plaintiff's suit be decreed forthwith without taking any evidence, or without reference to the evidence which had already been adduced? Clearly not in our opinion the section has been misread and misinterpreted by both the Courts below. The Munsif seems to have proceeded on the assumption that he could punish the plaintiff for disobedience to the order of the Court by dismissing the suit. That he cannot do. The Court was certainly not bound to adjourn the hearing of the suit, and it was for the plaintiff to establish her claim by such evidence as she was in a position to adduce on the date fixed. If that evidence failed to substantiate the claim, it would, of course, be dismissed. But the mere fact of her failure to comply with the order of the Court would not justify an order of dismissal. We allow the appeal, set aside the decrees of the Courts below and remand the case to the Court of first instance under section 562 of the Code of Civil Procedure, with directions to readmit it under its original number in the register, and deal with it according to law Costs here and hitherto will follow the result.

Appeal decreed and came remanded.