V MANICKAM PILLAI Vs. MAHUDAM BATHUMMAL

JUDGEMENT

(1.) This is a petition for the revision of the order of the Subordinate Judge of Tuticorin setting aside on certain conditions the dismissal of the plaintiff's suit for default of appearance. The allegations in the petition to set aside the dismissal were that the plaintiff is a Mahomedan woman, whose husband had lately died and who therefore could not appear in Court; that on the day of hearing, 6 April, 1922, the plaintiff's Vakil appeared before the Court and asked for an adjournment, apparently because the witnesses had not been served and had not turned up, although batta had been paid for process, that on the adjournment being refused, the Vakil reported no instructions and the suit was then dismissed for default of appearance.

(2.) That an order of dismissal for default of appearance was the proper order in such circumstances has been now clearly laid down by a Full Bench of this Court in this very case, the question referred to it being whether when a pleader has instructions to apply only for an adjournment and when the adjournment is refused, it is a case of non-appearance of the party and the dismissal of the suit is for default of appearance.

(3.) As to the reasons for non-appearance, even on the facts in the affidavit, the plaintiff's domestic situation was not preventing her from prosecuting this suit or from taking out process to the witnesses for the date of hearing and her son was looking after the case for her. In these circumstances, the lower Court was constrained in its order to admit that: The allegations in the affidavit are no doubt not sufficient per se to excuse the default. But having regard to the fact that plaintiff is a woman and the value of the suit is nearly Rs. 10,000, I think the dismissal may be set aside on terms as a matter of grace.