Provided that the Local Government, with the previous sanction of the Governor-General in Council, may remit such postage, or fee, or both, or may prescribe a scale of Court-fees to be levied in lieu thereof.

This section applies to H. C. and P. S. C. C.

CHAPTER VII.

OF THE APPEARANCE OF THE PARTIES AND CONSEQUENCE OF NON-APPEARANCE.

96. On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit. shall then be heard, unless the hearing be adjourned to a future day fixed by the Court.

Parties to appear on day fixed in summons for defendant to appear and answer.

Day Fixed.—This refers to the day fixed for the first hearing of the suit-Zainulabdin vs. Ahmad Raza, I. L. R., 2 Alla., 67; 5 Ind. App., 233.

Act VIII of 1859, section 109. This section applies to H. C. and P. S. C. C.

In Person or by their respective Pleaders.-Plaintiffs must be represented by the same pleader or set of pleaders, and cannot be generally represented by different pleaders-Jankibai vs. Atmaram, 8 Bom., 241. See note under section 179, post; and see note on "Ex-parte," under section 100, post.

Dismissal of suit where summons not served in consequence of plaintiff's failure to pay fee for issuing.

97. If, on the days so fixed for the defendant to appear and answer, it be found that the summons has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fee leviable for such service, the Court may order that the suit be dismissed: Provided that no such order shall be passed, although the summons has not been served upon the defendant, if, on the day fixed for him to appear and answer, he attends in person or by agent, when he is allowed to appear by agent.

Proviso.

Act XXIII of 1861, section 5. This section applies to H. C. and P. S. C. C. This section applies to proceedings in execution of decree-Bissessur vs. Murli, I. L. R., 9 Çal., 163; 11 C. L. R., 409.

The proper course for a Judge to adopt, when the original defendant, or a person added as a co-defendant, has not been served with summons and does not appear, is to dismiss the suit under this section, leaving the plaintiff if he has omitted to pay the costs through accident, &c., to apply to the Court for a fresh summons, or file a new suit (section 99)-Shek Abas vs. Ibrahimji, 5 Bom., 118; but in no case should the case be disposed of before the date fixed for hearing-Golab Dai vs. Jiwan Ram, I. L. R., 2 Alla., 318.

In the High Court if defendant enters appearance before the time fixed in the summons, the Court has power to order a case to be set down in the General Cause List, and the Registrar should do so or ask the Judge in Chambers whether he should do so or not-Cumming vs. Green, 4 B. L. R., App. 75.

4

An appeal admitted on the 8th of March was set down for hearing on the 9th of April. It was not taken up that day, and on the 19th appellant applied to pay the costs of serving the respondent, but his application was refused. The Court dismissed the case, remarking on the defence raised (that the mistake had occurred through the fault of an ignorant karpardaz), that the party should have employed a vakil, and that such a mistake should not be allowed to pass, unless it was clear that it had been committed in good faith-Pran Chunder vs. Juggessur, 11 W. R., 417.

Arrest. If a defendant is arrested, he has a right to appear, though not summoned--Syed Ali vs. Adib, I. L. R., 15 Bom., 160.

Appeal. The order is not appealable-Lucky Churn vs. Budúrunnissa, I. L. R., 9 Cal., 627; 12 C. L. R., 484.

If neither party appears, suit to be dismissed.

98. If on the day fixed for the defendant to appear and answer, or on any other subsequent day to which the hearing of the suit is adjourned, neither party appears, the suit shall be dismissed, unless the Judge, for reasons to be recorded under his hand, otherwise directs.

Act VIII of 1859, section 110. This section applies to H. C. and P. S. C. C, This section only refers to cases in which both parties are absent on the date fixed for the hearing. It does not apply where a party is present, but has omitted to serve a notice as required by the Court-Haradhun vs. Protap Narain, 14 W. R., 401; Alwar vs. Seshammal, I. L. R., 10 Mad., 270. It applies to miscellaneous proceedings -Rajpal vs. Chooramun, 4 Alla., 10, and proceedings in execution-Gaur Mohun vs. Tarachand, 3 B. L. R. App., 17. As to remanded cases, see 14 W. R., 81; W. R., 401.

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In the case of Camalammal vs. Rungaswamy, 4 Mad., 56, the High Court said, with reference to section 110, Act VIII of 1859-"It might appear at first sight that section 147 is unnecessary, because section 110 itself provides for the case of non-appearance of the parties on the day fixed for defendant to appear and answer, or on any other day subsequent thereto to which the hearing of the suit may be adjourned; but it appears to us that this section and sections 111 to 114 have reference only to the first hearing of the suit, which may be either on the day named in the summons, or on a subsequent day to which the first hearing may have been adjourned.' And in the case of Zainalbadin vs. Ahmad Raza, I. L. R., 2 Alla., 67, their Lordships of the Privy Council inclined to that opinion.

This section applies to an order passed under section 519, post-Lakhmichand vs. Gatto Bay, I. L. R., 7 Alla., 542,

Form of Order.-The order should be an order of dismissal. Ordering the case to be struck off the file is improper-Alwar vs. Seshammal, I. L. R., 10 Mad., 270.

Appeal. There is no appeal from an order under this section-Alwar vs. Seshammal, I. L. R., 10 Mad., 270; but compare the case of Alwar vs. Seshammal, I. L. R., 13 Mad., 290.

99.

Whenever a suit is dismissed under section 97 or

In such case plaintiff may bring fresh suit,

or Court may restore the suit to its file.

section 98, the plaintiff may (subject to the law of limitation) bring a fresh suit; or if, within the period of thirty days from the date of the order dismissing the suit, he satisfies the Court that there was a sufficient excuse for his not paying the Court-fee required within the time allowed for the service of the summons, or for his non-appearance, as the case may be, the Court shall pass an order to set aside the dismissal and appoint a day for proceeding with the suit.

Act VIII of 1859, section 110; Act XXIII of 1861, section 7. This section applies to H. C. and P. S. C. C.

This section applies to miscellaneous proceedings in execution-Rajpal vs. Chooramun, 4 Alla., 10; Gaur Mohun vs. Tarachand, 3 B. L. R., App. 17; see also section 647, infra.

In order to satisfy the Court "that the plaintiff was prevented by any sufficient cause from appearing," it is enough that he should shew that there has been a bonâ fide mistake which is not unreasonable-Hardatrai vs. Bullion Association, 3 Bom., 60.

If a suit is dismissed before the day fixed for hearing on failure to deposit tolabana, this irregularity on the part of the Judge does not deprive the plaintiff of his right to bring a new suit under this section-Gulab Dai vs. Jiwan Ram, I. L. R., 2 Alla., 318. Appeal. No appeal lies from an order to restore-Alwar vs. Seshammal, I. L. R., 10 Mad., 270; id., 290.

99A. If, after a summons has, whether before or after

Dismissal of suit where plaintiff, after summons returned unserved, fails for a year to apply for fresh sum

mons.

the first day of June 1882, been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails for a period of one year from such return to apply for the issue of a fresh summons and to satisfy the Court that he has used his best endeavours to discover the residence of the defendant who has not been served, or that such defendant is avoiding service of process, the Court may dismiss the suit as against such defendant.

In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

The issue of a second summons ought not to be ordered after the lapse of the limitation period for such a suit from the previous summons, unless the plaintiff has in the meantime done what he could to prosecute his suit with proper diligence-Ramkissen vs. Lukheynarain, I. L. R., 3 Cal., 312. See Gerender vs. Juggadumba, I. L. R., 5 Cal., 126; and compare Smalpage vs. Tonge, 17 Q. B. D., 644.

From such Return-Time runs from the date of the return by the NazirParsotam vs. Abdul, I. L. R., 13 Bom., 500.

Dismiss the Suit.-This does not discharge the defendant, and plaintiff may bring a new suit-Sheik Alli vs. Mahomed, I. L. R., 14 Bom., 267.

100. If the plaintiff appears and the defendant does not appear, the procedure shall be as follows:

Procedure if only plaintiff appears.

When summons duly served:

(a) if it is proved that the summons was duly served, the Court may proceed. ex-parte.

(b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant :

when summons not duly served:

when summons serv

(c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed

ed, but not in due

time.

by the Court, and shall direct notice of such day to be given to the defendant.

If it is owing to the plaintiff's default that the summons was not served in sufficient time, the Court shall order him to pay the cost occasioned by such postponement.

Act VIII of 1859, sections 111, 112, 113. This section applies to H. C. and P. S. C. C.

First Hearing.-Quære, is this section limited, to the day fixed for first hearing? See Doyal Mistree vs. Kupoor Chund, I. L. R., 4 Cal., 318; Hira Dai vs. Hira, I. L. R., 7 Alla., 548; and compare Sheo Churn vs. Heera Lall, 11 C. L. R., 537.

When the plaintiff appears and the defendant does not appear, this section must be followed whether the defendant has been summoned only to appear and answer the claim or has in addition been summoned to attend and give evidence-Taruck Nath vs. Jeamat, I. L. R., 5 Cal., 353.

The cause should not be tried ex-parte unless service of summons has been satisfactorily proved-23 W. R., Civ. Cir., 4; Suresh Chunder vs. Jugut, I. L. R., 14 Cal., 204; but it is not necessary that all the processes for procuring the attendance of the defendant as a witness should be exhausted. Proof of service of summons is sufficient, and if this was given, the Judge should follow one or other of the courses laid down in clauses (b) and (c)-Taruck Nath vs. Jeamat, I. L. R., 5 Cal., 353; but unless there is a decision or some evidence of service of summons on the record, a decree, ex-parte, has no legal effect-Ram Lochun vs. Nittya Kalee, 12 W. R., 211. The mere absence of the defendant does not justify the presumption that the suit is true; the Court is bound to see that at least a prima facie case is made out--Amrit Nath vs. Roy Dhunput, 15 W. R., 503.

Ex-parte.-Where a party failed to appear in person in obedience to a personal summons but appeared by pleader-Krishna Ram vs. Gobind Prasad, I. L. R., 8 Alla., 20; or appeared by pleader duly appointed, but the pleader was not instructed to to answer or instructed not to answer at all-Bhimacharya vs. Fukirappa, 4 Bom., 206, (not followed in Bengal-Dhan Bhagut vs. Ramessur, 20 W. R., 53,) or by counsel who moved for an adjournment, and on being refused did not appear for want of instructions, such party has not appeared under this section-The Administrator-General of Bengal vs. Lala, 6 B. L. R., 688; followed in Doyal Mistree vs. Kupoor, I. L. R., 4 Cal., 319; but see Sheo Churn vs. Heera Lal, 11 C. L. R., 537; and Ramchandra v. Madhav, I. L. R., 16 Bom., 23. And merely filing a vakalutnama, and when the case comes on not appearing in person or by pleader, is not an appearance-Bibee Haloo vs. Atwaro, 7 W. R., 81; Sheo Churn vs. Heera Lal, 11 C. L. R., 537; nor is putting in a written statement under similar circumstances-Purus Ram vs. Juyuntee Pershad, 1 Alla., 154, and see the argument in Zainulabdin vs. Ahmed, 5 Ind. App., p. 235, I. L. R., 2 Alla., p. 69. So where defendant had filed a vakalutnama, and objected to attachment issuing before judg-ment, but did not appear as directed by the summons, nor on a further date when the case was decided, the decision was held to be ex-parte-Hira Dai vs. Hira Lall, 1. L. R., 7 Alla., 538. Nor will the appearance in Court on an adjourned date of a vakil who previously filed a vakalutnama, be sufficient if he has no further instructions-Ramtahal vs. Ram, I. L. R., 8 Alla., 140. And where one of several defendants duly served did not appear until nearly a month after the date fixed for first hearing, and then applied by vakil to be heard in answer (under the last part of section 3 of Act VIII of 1859) and his application was rejected and judgment given against him: Held, the conduct of the defendant did not amount to an appearance, and that the suit was decided ex-parte-Mahomed Hossein vs. Muntozul Huq, 18 W. R., 400; but see Raghapa, vs. Parapa, I. L. R., 1 Bom., 217.

See note under section 118, post.

Not Ex-parte-The case is not ex-parte if the defendant has appeared in person or by pleader, though he may have neither filed a written statement-Goluckbur vs. Bishonath, Marsh., 32; nor made a verbal one—Jankee Ram vs. Chundrabully, 7 W. R., 295. Where a person was added as co-defendant, and appeared though protesting that he had not time to prepare his defence-Koomara Opendra vs. Nobin Krishna, 17 W. R., 370 note, it was held that the decision was not ex-parte. A decree was obtained on a solenamah. One of the defendants appeared and said she had no notice of the suit, that the solenamah was a forgery, and asked for an enquiry and relief: Held the decree was not an ex-parte decree-Hemmo Moyes vs. Watson and Co., 14 W. R., 299. See "DOES NOT APPLY," section 103, post.

Clause. (b)-The first summons should be returned before a second should issue. A Judge has, under Rule 12 of the Calcutta High Court, dated May 1875, a discretion as to granting a second summons, and is bound to enquire into the circumstances under which it is applied for, and where there has been great and unexplained delay, he should refuse it-Gourchurn vs. Peary Lall, 15 B. L. R., App. 12. And see section 99A, ante.

Clause. (c.)-If the summons has not been served in sufficient time to enable the defendant to appear, the Court is bound to postpone the hearing to a future date, and on this principle it has been held, in a case in which the defendant was served at 10 o'clock in the morning to appear at 12 o'clock on the same day, and did appear, that he should have been granted an adjournment-Awlad vs. Abdool Kureem, 18 W. R., 141. A defendant did not appear; it was alleged that he was insane, and the Judge struck off the case. It was held that the Judge was wrong, and ought to have made the inquiry contemplated in Act XXXV of 1858-Moorut Koomwar vs. Dhurm Narain, 2 W. R., Mis., 7.

Remedies.-The defendant can apply under section 108, infra, within the period of limitation, if the circumstances are such as will bring the case within it or for a review under the general law-Mewa Lall vs. Bhujhun, 22 Ŵ. R., 213; Bishen Perkash vs. Ruttun Geer, 20 W. R., 3 and the technical word "review" will not prevent the Courts from looking on the order as one passed under this section, if the circumstances clearly point that way-Khoob Lall vs. Shaik Kadir, 15 W. R., 431; or he may appeal from the ex-parte decree. See APPEAL, under section 102, post; and see section 540, post, as amended by Act VII of 1888.

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The Dekkhan Ryots Act (XVII of 1879).--This section is affected by Act XVII of 1879-Dulichand vs. Dhondi, I. L. R., 5 Bom., 184.

Procedure where defendant appears on day of adjourned hearing, and assigns good cause for previous non-appearance.

101. If the Court has adjourned the hearing of the suit ex-parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit, as if he had appeared on the day fixed for his

appearance.

Act VIII of 1859, section 111. This section applies to H. C. and P. S. C. C. Defendant did not attend for nearly a month after the date fixed for first hearing, and then he applied through his pleader to be heard in answer. He failed to show any good or sufficient cause for his previous non-appearance, and judgment was given against him: Held, that (1) the judgment was ex-parte, that (2) the only remedy was re-hearing by the original Court, and that (3) no appeal lay from the order-Mohammed Hossein vs. Muntozul Huq, 18 W. R., 400; but see Raghapa vs. Parapa, I. L. R., 1 Bom., 217. Under the Code no appeal lies from an order under this section (section 588).

Procedure where defendant only appears.

102. If the defendant appears and the plaintiff does not appear, the Court shall dismiss the suit, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

Act VIII of 1859, section 114. This section applies to H. C. and P. S. C. C. Application of Section.-This section applied to execution-proceedings--Gaur Mohan vs. Tarachand, 3 B. L. R. App., 17; Nigappa vs. Gungawa, I. L. R., 10 Bom., 433; but see the change lately made in 647, post. Where judgment-debtors appearing raised objections to the execution of a decree, and the Court, after investigation, passed judgment in the absence of the decree-holder, it was held that, if aggrieved, he might apply for a re-hearing under section 119, Act VIII of 1859 (section 103, infra)-Kalee Kristo Thakoor vs. Mahomed Kader, 12 W. R., 428. See “Suit,” section 103, infra.

Local Investigation.-Where a commission has issued for a local inquiry, and the Commissioner requires the attendance of the parties, should the defendant appear and the plaintiff make default in appearing on the day appointed, the proper course is for the Commissioner to dismiss the suit under this section-Eshanchunder vs. Soorjo Lall, Marsh., 139.