Decided on March 04,1949

Korji S/O Shivlal Appellant
Satan S/O Shivlal Respondents

Cited Judgements :-



Rege, J. - (1.)THE facts leading to this petition are that one Shivlal died leaving two sons Korji and Satan. The latter instituted a suit in respect of family property. The Defendant set up a plea of partition in the year 1928 A.D.
(2.)THE Plaintiff closed his case on 18th June 1948. The case was fixed for defence evidence on 7th July 1948 and the Defendant was asked to file his list of witnesses (presumably if he wanted sum -mousse to issue) within two days. On 7th July 1948, the pleaders for the Defendant were pre -sent and a petition for adjournment was tendered on behalf of the Defendant. The learned Munsiff rejected it purporting to act under Order 17, Section 3, Code of Civil Procedure and fixed the case for arguments on 16th July 1948. An application was made on that day for examination of the defend ant himself, but this too was rejected and the case again adjourned to 22nd July 1918.
The Court has jurisdiction to decide the suit forthwith if there is such default by a party as is contemplated in Order 17, Rule 3, Code of Civil Procedure and such a decision is one from which an appeal lies and is therefore not open to revision, but rather than decide the suit the lower Court adjourned the case on two dates, and the order shutting out the evidence for the defence appears to have been more by way of a penalty than adherence to procedure, I would observe that rules of procedure are intended to promote justice and the decision given by law must be exercised not on arbitrary and fanciful grounds but on grounds of reason. It was therefore proper when the petition for an adjournment was made on the ground of illness to have made an inquiry. It is not always possible for persons in the mufasil to obtain medical certificates and if the Slower Court had any doubt in the matter a certificate or affidavit should have been called for in support of the petition. The Defendant had been asked to file a list of his witnesses and he should have done so, but it may be possible that he may have counted on keeping his witnesses present, land was prevented by illness from doing so. In any case his petition was that he could not be present himself and it was a wrong exercise of discretion to have shut his statement out and even at the next hearing denied his examination of himself though eventually the case was adjourned suo motu.

(3.)ORDINARILY this Court is loth to interfere 'in interlocutory orders, but where the exercise lot jurisdiction' or failure to exercise it results or is likely to result in gross injustice or irreparable injury, interference ex debito justitia becomes necessary. A. Full Bench consisting of seven Judges of the Lahore High Court held that such a matter would be a "case decided" within the meaning of Section 115, Code of Civil Procedure and with this view I am in respectful agreement. I have given an anxious consideration to the question of the order I should make in the circumstances. In the ordinary course the case ought to go book; for an inquiry as to the Petitioner's plea of illness as a ground for his absence, but the case has taken a long time in the lower Court and I think the interests of justice would be better secured by allowing the evidence for the Defendant.

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