KANDRU HALDAR Vs. TARAPRASANNA ROY CHOWDHURI

JUDGEMENT

(1.) The petitioner in this Rule was the defendant in a suit for rent. After several adjournments the suit was fixed for hearing on the 29 June. On that date it was again adjourned on both parties prayer to the 26 July, and an order was recorded: "Issue process to the witnesses of defendant as prayed for." The record shows that this order was a mistake. The defendant never asked for process on his witnesses on that date. What he asked was for an adjournment in order to enable him to bring his witnesses who were ill. On the 8 July, however, the defendant did file a petition asking for issue of summons on his witnesses. That petition was rejected by the Munsif as untimely filed. On the 66 July the second prayer for issue of process by the defendant was again rejected, and on the defendant's pleader stating that he had no other instruction the suit was heard and decreed ex parte. The appeal to the District Judge failed on the ground that the Munsif was specially empowered under Section 153 of the Bengal Tenancy Act. The learned Judge, however, treated the appeal as an application for revision under that section and dismissed it.

(2.) We think that the Munsif acted without jurisdiction when on the 8 July 1921 ho rejected the petitioner's application for summons on his witnesses. The provisions of the Code as to the issue of summons are to be found in Order 16, Civil P.C. Nowhere in that order is the Court given discretion to refuse an application which may be made by a party under E. 1 of that order. It has heed held that the circumstance that the application was made at a late stage is no ground for refusing it though the Court may, when the case is hoard, refuse to adjourn the hearing: Kaji Ahmad V/s. Kaji Mahamad [1885] 9 Bom. 308 and Abdool Kadir V/s. Shaikh A bin Mirdha 24 W.R. 290. The question whether a Court should issue a summons or should adjourn are two entirely distinct matters. The Court has, except in cases of manifest abuse of procedure, no discretion to refuse an application for summons.

(3.) We hold, therefore, that this Rule must be made absolute, and as the order refusing summons was made without jurisdiction we must also set aside the order granting the ex- parte decree. The Rule is accordingly made absolute and the ex parte decree set aside, and the suit will be re-heard according to law.