S.K. Chaudhari, J.
1. This miscellaneous appeal by the plaintiffs under the provisions of Order XLIII Rule 1(c) of the Code of Civil Procedure is against the order dated 17th March, 1960 passed by the First Additional Subordinate Judge, Monghyr in Miscellaneous Case No. 5/22 of 1957/59 refusing to restore Title Suit No. 7/12 of 1944/57.
2. The salient facts necessary to be stated in this case in order to appreciate the point raised in this appeal are the following:
The aforesaid title suit was filed in the year 1944 for declaration of title and recovery of possession with respect to 2,903 bighas 7 kathas and 10 dhurs of land as described in Block No. 1 of the plaint, and 400 bighas and 10 kathas of land as described in Block No. 2 of the same schedule, with mesne profits, past and future; the tentative value of which was given in Schedule TI of the plaint. These disputed lands are situated in village Saidpur Salha Kararl.
3. It will be relevant to state here that the plaintiffs were more than two hundred in number and the defendants were more than eight hundred in number. Out of so many defendants only few of them contested the suit. It appears that they raised the plea of undervaluation of the suit along with other defences. The Presiding Officer of the trial Court by order dated 13th December 1955 (vide Order No. 321) directed the valuation matter to be heard first. Thereafter it appears that a number of orders passed from time to time and ultimately the suit was transferred to the Subordinate Judge-I for disposal. The Subordinate Judge, as the order sheet shows, passed repeated orders for hearing of the suit and the parties were directed to come ready. Orders Nos. 355 dated 20-8-1956, 356 dated 24-9-1956 and 357 dated 28-11-1956 support the aforesaid position. Thereafter it appears that the suit was again transferred to another Court, namely the Additional subordinate Judge, Monghyr (vide Order No. 362 dated 12-2-1957). The said transferee Court by the next order dated 13th February 1957 registered the suit and directed the suit to be put up for hearing on the date fixed. It appears from the order-sheet that before the transferee Court, the plaintiffs were negligent on several dates, inasmuch as they did not appear to take steps for service of summons under Order V, Rule 20 of the Code of Civil Procedure, as ordered to be taken on the substituted defendants. Accordingly, by Order No. 386 dated 6-6-1957, the suit was dismissed against the newly substituted defendants. It was further directed by that order that the suit would be taken up for hearing on 17th June 1957 and the parties were directed to come ready with all their evidence without fail. On the date fixed (i.e. on 17-6-1957) defendant Nos. 1 and 43 filed haziries separately and on the plaintiffs' request the suit was adjourned to 27-6-1957 for hearing. Again the parties were directed to come ready on that date. Ultimately on 27-6-1957, the suit was called out for hearing. Defendant No. 1 the State of Bihar and defendant No. 503 filed two separate haziries. Defendant's second party filed a petition praying that the valuation matter be decided first as there was already an order to that effect, (vide Order No. 321 dated 13-12-1955). But as the plaintiffs did not take any step when the suit was called out for hearing and nobody appeared on their behalf on repeated calls, the suit was dismissed for default in presence of some of the defendants.
4. Thereafter the plaintiffs filed an application under Order IX, Rule 9 of the Code of Civil Procedure for restoration of the suit. The said application was registered as Miscellaneous Case No. 5 of 1957. Some of the defendants filed rejoinder and contested the said miscellaneous case. The statements regarding sufficient cause for restoration of the suit as alleged in the application were denied. Both the parties led evidence in the miscellaneous case. Thereafter the trial Court heard arguments of the parties and by order dated 17th March 1960 dismissed the said miscellaneous case. Hence the present appeal.
5. In order to appreciate the points raised by Mr. Roy learned Counsel appearing for the plaintiffs-appellants, it is necessary to state the salient facts from the plaint. They are they following:
The predecessor-in-interest of the plaintiffs became proprietor of the Taluka Saidpur Salha otherwise called 'Saidpur Bhagwan, comprising about 15 villages. The portion of the Taluka comprised of Barai class of lands came to be known as 'Saidpur Salha Barai', and the portion comprised of the Karari class of lands came to be called as 'Saidpur Salha', which was sometimes called as Saidpur Bhagwan, Sometime in 1868 there was a collectorate partition of parent Tauzi No. 813, but the lands which were in the bed of the river were not partitioned. Schedule I lands of the plaint appertain to village Saidpur Salha Karari and those lands being under water were not partitioned. The eastern boundary line of the said Saidpur Salha Karari as given cadastral survey was imaginary and for this reason there was a dispute between the Malik of Mauza Bhagwanpur with the malik of Saidpur Salha Karari, which gave rise to Title Suit No. 3 of 1915. The same was ultimately compromised and according to the compromise Schedule II lands were said to appertain to Saidpur Salha Karari, but as those lands were in the bed of the river Ganges at that time, it was agreed that when those lands would come out of water, they would be separated from an exactly equal area of land to the east adjudged to appertain to Bhagwanpur by appointment of a pleader commissioner.
Sometime towards the later part of the year 1914, the lands of Schedule I of the plain from south began to come out of the river bed. The plaintiffs applied for Balabandi of the southern boundary line of the said village, which gave rise to Balabandi Case No. 35 of 1914. The objections were filed in that case; one by the proprietor of Mauja Maghar and the other by the Khas Mahal Officer Incharge of the Government Estate, Surajpura. The objection of the Khas Mahal was rejected and regarding the objection of the Malik of Maghar, it was ordered by the Collector that whenever there would be clash between the cadastral-survey of Salha Karari of the season 1900 1901 and that of Maghar of the season 1907-1908 the latter would prevail.
The further case of the plaintiffs was that in the year 1931, a dismissed Amin of the Khas Mahal raised a dispute about some lands of Saidpur Salha Barari, and set up persons on the basis of forged and fabricated documents who claimed themselves to be tenants resulting in criminal cases and riot. There was a proceeding under Section 145 of the Code of Criminal Procedure, which was decided against the Malik of Salha on 6th April 1927, and they were dispossessed from the lands. It was followed by Title Suit No. 26 of 1930 brought by the Malik against the Secretary of the State and those persons who were set up by the Khas Mahal authority as tenants, for recovery of possession and mesne profits. The said suit was decreed on 31st January 1938. By the time the proceeding under Section 145 of the Code of Criminal Procedure was decided and the disputed lands mentioned in Block-2 of the plaint as also the lands to their east appertaining to Bhagwanpur by virtue of the compromise decree in Title Suit No. 3 of 1915 began to be reformed. The aforesaid Amin of the Khas Mahal Department being emboldened by the success in respect of the Salha Karari land began to set up begus tenants with respect to those newly alleviated lands, mentioning them as parts of the Government Estate. It was resisted by the Maliks of village Saidpur Salha Karari as well as the Maliks of Bhagwanpur. Eventually the Khas Mahal gave up its claim over 400 bighas and 10 khathas of land adjudged to be appertaining to Bhagwanpur in Title Suit No. 3 of 1915, but confined its claim to the lands in dispute in this case described in Block-2 of the plaint.
The plaintiff's further case was that in that dispute the aforesaid Amin set up several Khas Mahal tenants of other villages and fabricated documents and created bogus papers on the basis of which an attempt was made in 1929 to take forcible possession which gave rise to a proceeding under Section 144, Cr. PC which was decided in the first instance by the Sub-divisional Magistrate Begusarai against the Malik of Saidpur Salha, but the said order was set aside by the District Magistrate Monghyr.
Thereafter after the rainy season of 1930, the Khas Mahal Officers accompanied by the aforesaid Amin and other staff of the Khas Mahal and with the help of the police wanted to take forcible possession of the disputed lands and on pretext of measurement and demarcation, but the Khas Mahal failed in their attempt to wrongfully dispossess the plaintiffs. Thereafter the Khas Mahal Officers prosecuted the Maliks of the village and their men under various sections of the Indian Penal Code, which resulted in their conviction. The plaintiffs have asserted that the conviction was made on wrong and fabricated documents filed in that criminal case. The further case of the plaintiffs is that, armed with the aforesaid decisions the persons set up by the Khas Mahal authorities after the rainy season of 1932, forcibly entered upon the disputed lands and dispossessed the plaintiffs from the same. The plaintiffs have asserted that the defendants first and second parties are trespassers and they have no title in the disputed lands and that the plaintiffs have perfected indivisible title in them.
The plaintiffs also further asserted that they are 16 annas proprietors of villages Saidpur Salha Karari and Saidpur Bhagwan bearing parent Tauzi No. 813 and recorded as proprietors in Register D and very small shares are recorded in the names of the defendants third party who are merely Farzidars of the plaintiffs and, therefore, they have been impleaded as proforma defendants in the suit.
The further case of the plaintiffs is that the defendants first and second parties by their joint and concerted action dispossessed the plaintiffs, and, therefore, they were jointly and severally liable for mesne profits and since after dispossession, the plaintiffs have been informed, the defendants second party have been inducted as tenants in the suit lands, and, therefore, they have been arrayed as the defendants second party. It is necessary to quote a portion of paragraph 28 of the plaint which reads thus:
the defendants 1st and 2nd party are jointly and severally liable for mesne profits as the plaintiffs have been dispossessed from the lands in suit on account of the joint and concerted action of the Khas Mahal monghyr and the defendants 2nd party.
With these allegations the present suit has been filed for recovery of possession and for mesne profits pending the suit till delivery of possession in favour of the plaintiffs and jointly and severally against the defendants first and the second parties.
6. On reading the plaint it is clear that, in short, the case was that the plaintiffs were 16 annas proprietors of the village ID which the suit lands are situated and that they have been dispossessed by the defendants first and second parties by their joint and concerted action from the suit lands. The plaint does not mention as to what were their different shares in the proprietary interest of the village in question where the suit lands are situated nor does it state as to which particular area of the suit lands belonged to which plaintiff. It also not disclose as to from what specific portion of the suit lands each of the defendants has dispossessed which of the plaintiffs. The specific statement is that the defendants first and second parties have jointly and in a concerted action dispossessed the plaintiffs from the suit lands, Keeping the plaintiffs' case in mind, I shall proceed now to discuss the points raised by the learned Counsel for the appellants.
7. Before taking up the points argued by Mr. Roy, it will be apposite to state that during the pendency of this appeal a number of appellants have died and a great number of respondents also died. The detailed defects of the appeal would be found in the office note dated 11-9-1981. It will be appropriate to quote the relevant portion of the said office note. It reads thus:
This appeal now stood dismissed as against R 412, 784, 788, 789, 790, 791, 795, 798, 616, 779, 783, 774 to 776, for non-compliance of Order No. 13 dated 16-1-1961, It further appears that the names of respondent Nos. 268-A and 297 were expunged from the Memo of appeal vide Order No. 33 dated 15-10-1963 and appellant Nos. 18, 39, 94, 105, 212, 223, 241, 254, 258 were all dead and their heirs have not been substituted vide Order No. 44 dated 28-10-1964.
Further more respondent Nos. 34, 52, 57, 70, 93, 97, 102,106, 126, 140, 172, 174, 194, 204, 206, 209, 220 to 222, 227, 238, 251, 255, 257, 260, 266, 268, 413, 461, 469, 533, 568, 570. 574, 577. 578, 584, 588,589, 661, 667, 697, 706, 710, 711, 714, 715, 748, 752, 773, 785, 792, 796, 797, 807, 809, 811, are dead and this appeal has abated as against their heirs, vide Order No. 25 dated 14-11-1961....
It was ordered under Order No. 54-dated 14-9-1981 that the incompetence matter will be considered at the time of final hearing of the appeal itself.
8. Names of two respondents (i.e. respondents Nos. 268-A and 279) were also expunged from the memorandum of appeal, at the instance of the appellants' Counsel on 15-10-1963.
9. Mr. Kailash Roy learned Counsel appearing on behalf of the appellants strenuously contended that in spite of a number of appellants having died as also a number of respondents also having died and their heirs not having been substituted, the appeal as a whole has not become incompetent. He further argued that the dismissal of the appeal against some of the respondents, as already stated above would also not affect the whole appeal, and the appear competent so far as the appellants and the respondents who are still on the record.
10. It is not necessary to repeat here as to against whom the appeal has stood dismissed and against whom the appeal has abated for the deaths aforesaid on both sides.
11. Mr. Roy put forward the following propositions of law, He submitted that when a group of co-sharers having defined shares can be joined together in a single suit against trespassers for joint lands and for mesne profits, such suit should be a combination of many suits and when one co-sharer can sue for recovery of his share of joint land and for his share of mesne profits, the suit shall survive against the living respondents on record. He relied upon the proposition of law that one co-sharer can bring a suit for eviction of a trespasser or trespassers from the entire joint lands and the joint tortfeasors are jointly and severally liable for the wrong done. The present suit out of which this appeal arises, according to the learned Counsel, should be deemed to be a combination of several suits and due to the death of one or more co-sharers-plaintiffs, the suit shall not become incompetent so far as the remaining co-sharers plaintiffs are concerned. He elaborated it by saying that the present suit should be deemed to be composed of several suits as if brought separately by each of the co-sharers and the decree which may be passed in such a suit would be deemed to be a decree passed separately in each suit. According to Mr. Roy this principle would equally apply in appeals from the order, namely order dismissing a petition under Order IX, Rule 9 of the Code of Civil Procedure for restoration of a suit. Mr. Shrinath Singh, on the other hand, contended that even if it be assumed for argument those that principles would apply in an appeal from an order, still they cannot be applied in the present case as the present suit cannot be said to be a combination of many suits where each of the plaintiffs could have brought actin separately for his own share and for a decree for his own share. Mr. Roy tried to meet this argument of Mr. Shrinath Singh by contending that the claim of the surviving plaintiffs-appellants regarding the lands in suit and mesne profits are only in proportion to their respective shares to be proved in the suit from Register-D, and the liabilities of the surviving defendants-respondents regarding the suit lands held by them which is to be proved in the suit from the Khatauni the entire appeal cannot be held to have abated.
12. In support of this argument Mr. Roy, learned Counsel for the appellants, strongly relied upon the case of Harihar Prasad Singh and Ors v, Balmiki Prasad Singh and Ors. . In that case it has been held that each plaintiff could have filed the suit for his share of interest of Ramdhan's estate. The fact that all the reversioners joined together as plaintiffs and filed one suit does not mean that if for one reason or other the suit of one of them fails or abates, the suit of the others would fail or abate.
13. The other case relied upon is Johan Uraon v. Sitaram Sao . That was a case where the suit was brought by one of the joint co-owners and it was held to be maintainable even though the other joint co-owners had not been impleaded as parties to the action. It was, therefore, held that if one of the plaintiffs, who were joint owner, dies, the right to sue survives on the other plaintiffs or appellants or respondents, as the case may be, and in such a case it cannot be said that the right to sue does not survive. Their Lordships in that case referred to a decision in the case of State of Punjab v. Nathu J Ram, , and pointed out that if the Court can deal with the matter in controversy so far as regards the right and interest of the appellants and the respondents, other than the deceased respondents, it has to proceed with the appeal and decide it.
Mr. Srinath Singh for the respondents rightly pointed out that the principle enumerated in the aforesaid two decisions would apply provided it fits in with the facts of the present case. He has rightly pointed out that on construction of the plaint as a whole, it would be found that the plaintiffs put forward a case that they were co-sharers and that the defendants first and second parties jointly in a concerted action dispossessed the plaintiffs from the suit lands. That being the plaintiffs' case in substance, Mr. Singh contended that this principle laid down in the aforesaid decisions would not apply. He drew our attention to the decision in State of Punjab v. Nathu Ram (supra), which has reference in
The case of Johan Uraon (supra), wherein similar arguments, as put forward by Mr. Rao, was also advanced in that case, namely, that the shares of the plaintiffs and the defendants can be determined in suit with reference to the revenue records. A discussion of similar argument put forward in the case of State of Punjab v. Nathu Ram (supra) has been made in paragraph 10 at page 91, It reads thus:
It is, however contended for the State that according to the entries in the village records, Labhu Ram and Nathu Ram had equal shares in the land acquired and that therefore the appeal against Nathu Ram alone can deal with half the amount of the award. We do not agree. The mere record of specific shares in the revenue records is no guarantee of their correctness. The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of this legal representatives. This is not permissible in law....
14. Learned Counsel for the respondents further rightly pointed out the distinction in the case of Harihar Prasad (supra), from that of the present case. He pointed out that in the said Supreme Court case, each to the reversioners were entitled to receive his own specific share. "He could have sued for his own share and got a decree for his own share. That is why five titles suit Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 were filed in respect of the same estate. In the present case also the suit in the first instance was filed by the 1st and 2nd plaintiffs for their 1/12th share". Thus on facts also this Supreme Court decision is distinguishable and the principle of that case would not apply to the present case.
15. The next case relied upon by Mr. Roy is Sheobalak Singh and Ors. v. Achutanand Singh and Ors. A.I.R. 1943 Pat. 80. In that case, the respondents brought the suit against the judgment-debtors-appellants claiming that the latter had no right to settle certain diara lands with third persons. The suit was decreed for possession and mesne profits. The mesne profits was awarded against all the judgment-debtors, who were co-sharer maliks and who claimed the right to settle the land. In that case, as co-sharer maliks, each of them had share in the village. It was held, that though in form the decree was joint and several, in substance it was a decree against the various judgment-debtors for their shares of mesne profits, and, therefore, the whole amount of the decree would not be recovered from one judgment-debtor alone. Thus in the absence of any direction in the decree, the executing Court could in such a situation apportion the amount of mesne profits leviable from each judgment-debtor. It may be stated that this is, however, not a case of abatement at all and, therefore, this case does not help the appellants.
16. The other case relied upon is the decision of the Full Bench of this Court in Ramniranjan Das and Ors. v. Loknath Mandal and Ors. in which the principle laid down is that one
co-sharer can maintain a suit for possession against trespassers. This proposition of law cannot be disputed.
17. Thus the argument of Mr. Roy that the interest of the plaintiffs inter se and those of the defendants inter se in the suit lands is ascertainable from the revenue records has no substance an even if it be assumed that the principles of law as stated by Mr. Roy earlier would apply to an appeal from orders, they do not help the appellants. Thus it has to be held that the plaintiffs' interest being joint and not ascertainable and so also the defendants' share in the suit lands, the appeal has become incompetent as a whole and has abated as such.
18. It was next argued that at least the prayer for mesne profits of the surviving appellants against the surviving respondents would remain alive and, therefore, such suits should be restored to file. Mr. Roy cited a number of decisions on the principles of liability of joint tortfeasors. The principles of liability of joint tortfeasors as enumerated in several decisions cited by Mr. Roy were not disputed at the Bar and, therefore, it would be confusion referring and discussing those decisions. Decisions were also cited to show that the plaintiffs have right to get mesne profits from the defendants-trespassers till the vesting of the estate. These principles also were not disputed. These principles would apply in a case where the suit or the appeal has not become defective by reason of death of some of the defendants or dismissal of the same against some of them. The argument of Mr. Roy that the relief for mesne profits would remain alive has no substance. I have already held above that it is not a composite suit, which can be said to have been brought by several plaintiffs having specific shares and joined in one suit. It is in effect one suit by all the plaintiffs having joint shares, which not been in fact defined in the plaint. So is the case with the defendants-respondents. The extent of encroachment by different defendants has not been given in the plaint. In other words, the specific statement is that by a contended action of the defendants first and second parties; they have jointly dispossessed the plaintiffs. In that view of the matter, the prayer for mesne profits would also not survive and, therefore, this argument has also no substance.
19. Next the learned Counsel for the appellants that the order of dismissal of a suit for default on a date when the suit was not fixed for hearing is the court's mistake and, therefore, the appeal should be allowed and the suit should be restored to its original file contended it.
It appears that by order dated 27-6-1957, the suit was dismissed for default as the plaintiffs did not appear. It also appears from that order that an application was filed on behalf of so me of the defendants who appeared in the suit to take up the valuation matter first, as there was already an order passed by that Court to that effect on 13-12-1955. It appears that the Court did not take notice of that application, but as the suit itself was fixed for hearing and there was a default in appearance on the part of the plaintiffs, the suit was dismissed for default in presence of some of the defendants. It is true that order No. 321 dated I3th December 1955 shows that the matter of valuation was ordered to be taken up first, but, as already indicated above, the first transferee Court as also the second transferee Court passed series of orders fixing the suit for hearing. I have given some of the dates on which orders were passed to that effect by the trial Court and therefore it is not necessary to restate them here. Mr. Roy for the appellants, therefore, contended that in such circumstances this Court should exercise its power under Section 115 of the Code of Civil Procedure by treating the appeal as a revision and should give the relief to the appellants.
Mr. Singh learned Counsel for the respondents on the other hand contended that even if it be assumed that in some cases, the High Court exercises its power under Section 115 of the Code of Civil Procedure treating the appeal as a revision, but the said power cannot be exercised in the present case in view of the defects which have crept, in the appeal during its pendency. Those defects, I may state here, have been pointed out towards the beginning of this judgment.
20. Learned Counsel for the respondents pointed out that since the suit cannot be construed as a composite suit consisting of several suits - brought by the plaintiffs separately against independent trespassers and the appeal arising out of an order passed in such a suit has abated, the power of revision under Section 115 of the Code of. Civil Procedure cannot be exercised. According to the learned Counsel such power can be exercised converting an appeal into a revision if the appeal was not otherwise defective, as several defendants have been benefited by the order of the trial Court, who are not before this Court nor their heirs are before the Court. It appears that the contention the learned Counsel for the respondents is well founded. The appeal having become defective for many reasons, and the appeal having already been held to have abated as a whole, it cannot be converted into a civil revision by invoking the powers of the High Court under Section 115 of the Code of Civil Procedure. This point of Mr. Roy, therefore, also fails.
21. It was also contended by Mr. Roy that this Court should take notice of the subsequent events which happened after the filing of the suit, namely, (i) vesting of the estate took place on 1-1-1956, (ii) deaths have occurred at the stage of the appeal on both sides; and (iii) dismissal of the suit for default. According to the learned Counsel, therefore, in view of these subsequent events there is necessity for amendment of the plaint, if the suit is restored and those amendments were not necessary at the time when the suit was filed. I have failed to appreciate as how these are subsequent events and how these events help the appellants in getting the appeal allowed this Court. In my view those events stated above cannot be a ground for allowing the appeal and restoring the suit.
22. It was lastly argued by Mr. Roy learned Counsel for the appellants that the decision on merits while disposing of the application under Order IX, Rule 9 of the Code of Civil Procedure by the Court below is erroneous. He contended that on the materials on record the Court below ought to have held that there was sufficient cause for restoration of the suit. In my view it is not necessary to go into this question at all, as the appeal has been held to have abated as a whole, but as the argument was advanced from both sides on this point, I answer this point also. The Court below in its elaborate judgment has discussed all the materials on record and has given cogent reasons for coming to a finding in arriving at a conclusion that the appellants have failed to prove sufficient cause for restoration of the suit. The case put forward in the application under Order IX, Rule 9 CPC was that two of the plaintiffs, namely, Rameshwar Singh and Bhuneshwar Singh left their village on 26-6-1957 for monghyr for making pairvi in the suit. They reached suraj-Garha at 8 p.m. on the same date and when they were preparing to start for Monghyr by bus which was to leave in the morning at 5 A. M. on the next date, Rameshwar Singh fell ill and was attacked with cholera at 2 'O' Clock in the night. The further case was that he was taken to the house of doctor Fanindra Nath Mukherjee (A.W. 1) a medical practitioner at Surajgarha. It is said that the said doctor treated him and the other person who was accompanying him namely Bhuneshwar Singh had to attend him. Rameshwar Singh's condition remained bad till 27-6-1957 and as such none of them could attend the Court for making pairvi in the suit. It is said that their lawyer was also lying ill at that time and as such he also could not make any pairvi. They, therefore, claimed that they were prevented by sufficient cause from appearing in the suit.
A rejoinder was filed to that application by some of the defendants. They have denied the allegations of illness of Rameshwar Singh and they have alleged that they willfully defaulted in appearing in the suit. The further objection in the rejoinder was that Rameshwar Singh never made pairvi for plaintiffs in the suit and the allegation of his illness is also incorrect. It was also stated that their lawyer and the clerk were present in Court on 27-6-1957 and the lawyer was not ill.
23. In support of the respective cases, both the parties adduced evidence. It may be stated here that said Rameshwar Singh was one of the plaintiffs and in his evidence, who has been examined as A.W. 2, he has stated that he never filed any haziri in the suit before 27-6-1957, and he has no documents to show that he used to make pairvi in the case. "No paper was produced in the Court below to show that he was actually the pairvikar on behalf of all the plaintiffs and that he actually did any pairvi on any previous, date. Therefore, the allegation of his going to Monghyr for making pairvi in the suit and falling ill on the way, which has been made out in the application under Order IX Rule 9 of the Code of Civil Procedure, in merely a plea which has been taken for restoration of the suit. I have also perused the reasons given by the trial Court and the same appears to be cogent. The other witness examined is (A.W. 1) who is the doctor who is said to have treated Rameshwar Singh (A.W. 2). This doctor in his cross-examination has stated that he has settled at Akbarpur 13 or 14 years ago and before that he was at Sambho. Rameshwar Singh was resident of Sambho and A. W. I has stated that Akbarpur and Sambho are contiguous villages. The witnesses, namely, A.W. 2 Rameshwar Singh, (A.W. 3) Bhubaneshwar Singh (A.W. 4) all have stated that Rameshwar Singh fell ill at Surajgarha. The application under Order IX, Rule 9 of the Code of Civil Procedure also states that Rameshwar Singh fell ill at Surajgarha. The doctor in his cross-examination, as already stated above, has admitted that he settled at Akbarpur 12 or 14 years ago. He has also, while giving his address in his deposition, has mentioned 'Akbarpur' as his present residence. A. W. 2 has stated that the said doctor has a rented house at Surajgarha. To combat the same, one witness as O.W. 1 was examined on behalf of the opposite party. He was the assessor Panch of Surajgarha Bazar for the last 20 to 22 years and in "that capacity he used to write chaukidary register. He has stated that in that register, the names of the tenants and owners of the houses are mentioned therein, and the said register was written after making due enquiries. He proved the said register, which was marked as Exhibit-A. He has stated that the entries in that registers are all correct. He further stated in his evidence that no doctor of the name of Fanindra Nath Mukherjee lived at Surajgarha Bazar in 1957, or before or after. Mr. Roy learned Counsel for the appellants attacked this register by saying that it is common experience that in the municipal registers the names of the majority of the tenants residing in different houses would not appear, but the said argument in my opinion would not apply in the present case. In the present case the register is a Chaukidary register of Surajgarha Bazar and prepared by the assessor Panch who on oath has stated that he prepared the same after making due enquiries. This is a strong circumstance to show that the said doctor (A.W. 1) never resided in Surajgarha Bazar nor had taken any house on rent there rather from the evidence of the doctor himself it is manifest that he was resident of Akbarpur, which was a contiguous village of Sambho the village of the plaintiffs. Therefore, the allegation that Rameshwar Singh fell ill and was attacked with cholera at Surajgarha and was taken to the house of the said doctor in the night and was treated by him cannot be accepted.
Another circumstance that has been pointed out by Mr. Singh learned Counsel for the respondents is that a certificate was taken from the said doctor on 30-6-1957 as the certificate itself shows. A.W. 1 the doctor in his cross examination has stated that the applicant stated to him that a case has been dismissed for default and, therefore, he wanted a certificate. Mr. Singh pointed out that this certificate was taken on 30-6-1957 and the present application was filed as late as on 24-7-1957 even though. P.W. 4 has stated in his evidence that he reached Court on 27-6-1957 and learnt about the dismissal of the suit on the same date. Learned Counsel for the respondents, therefore, pointed out that this is a strong circumstance for held-in that the plea of illness of Rameshwar Singh and his treatment by the aforesaid doctor is an after-thought. Mr. Singh appears to be right in his contention. I have perused the various reasons given by the Court below for coming to the conclusion that the appellants have failed to prove sufficient cause for restoration of the suit. I have no reason to differ from the view taken by the Court below. I also do not find any illegality in arriving at the said finding by the Court below. Accordingly, on merits also, I uphold the aforesaid findings of the Court below.
24. In the result, there is no merit in this appeal and it is held to have abated and is accordingly, dismissed. In the circumstances of the case however I make no order for costs.
M.P. Varma, J.
25. I agree.