- (1.) JUDGEMENT This is an appeal by Tripathi Sansnath, defendant against the order of the Additional Civil Judge of Basti allowing the appeal of Tripalhi Bhagwat Nath (now represented by his legal representatives) and other, plaintiffs, whereby the decree and judgment of the Additional Munsif in suit No. 1124 of 1954 was set aside and the suit was remanded for a fresh hearing in accordance with the law.
(2.) THE present suit was for the recovery of possession over plots detailed at the foot of the plaint. Issues were framed on 19-4-1955 and 26-5-1955 was fixed for final hearing. Hearing was adjourned on many dates, sometimes on the request of the plaintiffs, and at others, of the defendant The last adjournment was sought for by the plaintiffs. On the grounds that their witnesses were not present 20-4-1956 was then fixed for final hearing but on that date also the plaintiffs applied for adjournment on the same ground. The application for adjournment was rejected and the Munsif proceeded with the suit under Order XVII,. Rule 3, C.P.C. After the rejection of the adjournment application the counsel for the plaintiffs made a statement that he had no instructions. No evidence was thus adduced by the plaintiffs and after recording the evidence of the defendant the Munsif fixed 14-5-1956 for the pronouncement of judgment. Judgment was pronounced that day (14-5-1956). The plaintiffs preferred an appeal before the District Judge against the decree of the Additional Munsif dismissing their suit with costs under Order XVII, Rule 3, C.P.C. The appeal was heard by the Additional Civil Judge who relying upon the case of Dayalji Wasanji v. Kedarnath Onkarmal and Co. AIR 1953 Nag 222 allowed the appeal on the ground that it was necessary for the Munsif to pronounce judgment on the date the trial was ordered to proceed under Order XVII. Rule 3, C.P.C. As the judgment was pronounced after more than three weeks a gross illegality was committed and the decree being illegal deserved to be set aside.
(3.) ORDER XVII, Rule 3, C.P.C. as amended by the Allahabad High Court runs as below "Where any party to a suit to whom lime 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 lime has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." The rule lays down that instead of adjourning the hearing of the suit the Court can proceed to decide it forthwith. The learned Civil Judge was apparently of the opinion that the word forthwith has the same meaning as "at once" and that it was necessary for the Munsif to record evidence of the defendant and also to pronounce judgment on the date he decided to proceed under Order XVII Rule 3. C. P. C. ;