Decided on July 30,1951

R.S.N. Co. Ltd. And Another Appellant
Dhirendra Krishna Paul Respondents


Thadani, C.J. - (1.) THIS is an application by R.S.N. Co., Ltd. and I.G.N. Co., Ltd., under the provisions of S. 110 of the Civil P.C. directed against an order dated 2 -12 -1950, passed by the learned Munsiff of Gauhati. The order is in these terms: The petitioner is ready. He Is examined. It appears that he was under a bona fide mistake of fact as to the last date of his suit. The salt is restored to file with a severe warning to the plaintiff that future latches will not be condoned. None appears for the defendant. The plaintiff will pay Rs. 10 to the defendant towards costs on 4 -12 -50 as the petitioner has left the Court today.
(2.) MR . Sen, for the petitioners, contends that the original order of dismissal of the suit passed by the learned Munsiff of Gauhati was an order which ought to be regarded as an order passed under O. 17, R. 3 of the Civil P. C and as an order under O. 17, R. 3 is an appealable order, an application under O. 9 for restoring the suit was not competent. We think there is no substance in this contention. The order dated 24 -4 -1950 reads as follows: Presiding Officer transferred. Defendants absent and take no steps except filing lawyer's hazira. Plaintiff prays for adjournment till 26 -6 -50 for peremptory hearing. Resummon absent P.Ws. P.W's present will go on P.R. of Rs. 20 each. The order dated 26 6 1950, reads: The defendants are ready with witnesses. They tender the evidence of the witnesses examined on commission. But the plaintiff has defaulted steps and appearance. Hence the salt is dismissed for plaintiffs default with costs.
(3.) MR . Sen has invited our attention to an application made by the plaintiff upon which the order dated 24 -4 -1950 was passed and has contended that if the application made by the plaintiff is read with the order, the order must be construed by an order made under O. 17, R. 3.;

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