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duty of the Court, when the mortgage was disclosed, to frame an issue on the subject-Mujboot Singh vs. Chunder Mashee, 16 W. R., 44; and where a person sued as a purchaser, but defendant denied the purchase, and the oral evidence proved the transaction was a mortgage, it was decided that the Court was bound to inquire into it by amending the issues-Nundo Lall vs, Prosunno Moyee, 19 W. R., 333.
Not allowed.-In a suit for damages, there was a reference in the plaint to a contract to pay rent: Held, an issue could not be framed so as to recover rent-Narayan vs. Hari, I. L. R., 13 Bom., 664.
Evidence.-The issues fixed, and not the pleadings, ought to guide the parties as to production of evidence--Huro Soonduree vs. Ameena Begum, 5 W. R., Act X, 72. Order of Disposal.
The Judge may dispose of the issues in any order--Sitanath Doss vs. Doyodronath Doss, 23 W, R., 54; but separately, if possible-Umbica Soonduree vs. W. Woodin, 3 W. R., 226. 150. When the parties to a suit are agreed as to the ques.
tion of fact or of law to be decided between Questions of fact of them, they may state the same in the form law may by agreement be stated in form of of an issue and enter into an agreement in issue.
writing(a) that, upon the finding of the Court in the affirmative or the negative of such issue, a sum of money specified in the agreement, or to be ascertained by the Court, or in such man. ner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some right or subject to some liability specified in the agreement;
(b) that upon such finding some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct; or
(c) that upon such finding one or more of the parties shall do or abstain from doing some particular act specified in the agreement, and relating to the matter in dispute.
Act VIII of 1859, section 142. This section applies to H. C.
Where the issues are selected and agreed upon by the parties, they cannot be amended save by mutual consent--Hamilton vs. Staley, 28 Sol. Jo.,
478, there is no appeal as to the form of them--Hadee Ali vs. Khorshed Begum, s. D., N. W., 1851, p. 335. See “ ISSUES AGREED TO," section 147, ante. 151. If the Court be satisfied, after making such inquiry
as it deems proper, Court, if satisfied agreement
(a) that the agreement was duly exeexecuted in good faith, may pronounce judg: cuted by the parties, .
(6) that they have a substantial interest in the decision of such question as aforesaid, and
(e) that the same is fit to be tried and decided,
it may proceed to record and try the issue, and state its finding or opinion thereon in the same manner as if the issue had been framed by the Court ;
and may, upon the finding or decision on such issue, pronounce judgment according to the terms of the agreement;
and upon the judgment so given, decree shall follow and may be executed in the same way as if the judgment had been pronounced in a contested suit.
Act VIII of 1859, section 143. This section applies to H. C.
May Pronounce Jugdment. - A special case cannot be amended after hearing ; but if a decision on a point of law is given on it under a mistake of fact, the Court is not bound by the decision unless it has been adopted by subsequent orders, but may disregard it, direct the action to go on to trial, and direct inquiries to ascertain the real facts-- Tomlin vs. Underhay, 22 C. D., 495
The word “may” means shall," and the Judge is bound to give judgment according to the agreement, although specific performance of it might ordinarily be refused Goculdas vs. Scott, I. L. R., 16 Bom., 202, p. 216.
CHAPTER XII. DISPOSAL OF THE SUIT AT THE FIRST HEARING. 152. If at the first hearing of a suit it appears that
the parties are not at issue on any question If parties not at issue on any question
of law or of fact, the Court may at once proof law or fact.
nounce judgment. Act VIII of 1859, section 144. This section applies to H. C. and P. S. C. C.
Voluntary Appearance.-If the defendants voluntarily appear in Court and confess judgment, no summons is necessary for their appearance, and_the Court should at once give judgment for the plaintiffs-Bank of Bengal vs. Currie, 3 B. L. R., 403; 12 W. R., 432.
Wrong Person.-When the plaintiff sues the right person, but serves the summons on another person of a similar name, who appears and denies liability, the suit should be dismissed with costs--London, Bombay and Mediterranean Bank vs. Mahomed Ibrahim, I. L. R., 4 Bom., 619.
153. Where there are more defendants than one, and If one of several de- any one of the defendants is not at issue fendants be not at issue with the plaintiff on any question of law with plaintiff.
or fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants. This section is new. It applies to H. C. and P. S. C. C.
154. When the parties are at issue on some question If parties at issue on
of law or of fact, and issues have been question of law or fact. framed by the Court as hereinbefore provided, if the Court be satisfied that no further argument or evidence than the parties can at once supply is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with Court may determine
the suit forth with, the Court may proceed issue.
to determine such issues,
and, if the finding thereon is sufficient for the decision, may and pronounce judg- pronounce judgment accordingly, whether ment,
the summons has been issued for the settlement of issues only or for the final disposal of the suit :
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them object.
If the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument, as the case requires.
Act VIII of 1859, section 145. This section applies to H. C. and P. S. C. C.
Parties are at Issue.-The Conrts are bound to proceed on the facts alleged in the plaint, and cannot refuse to try issnes of fact upon the merits on the ground of the legal effect of the facts alleged, except on the assumption that they can be and are proved. This assumption is, however, limited to the consideration of the legal effect of the facts pleaded in bar-Nawab Sidhee vs. Ojoodhyaram Khan, 10 Moore, 540.
Settlement of Issues. – When a summons has been issued for the settlement of issues only, a Judge should not proceed and try the cause unless under the circumstances laid down in this section, for otherwise he might preclude a party from adducing evidence in support of his case- --Sheikh Jeeawun vs. Goolab Khan, 1 Alla., 147 ; but if the evidence adduced is decisive of the matter in dispute, then the Judge may dispose of the cause unless either of the parties distinctly objects and asks for time to produce evidence in support of his case-Soorendro Pershad vs. Jugodbundhoo, 22 W. R., 426.
155. If the summons has been issued for the final disposal If either party fails
of the suit, and either party fails without to produce his evidence, sufficient cause to produce the evidence on Court may pronounce judgment, or adjourn
which he relies, the Court may at once prosuit.
if it thinks fit, after framing and recording issues under section 146, adjourn the suit for the production of such evidence as may be necessary to its decision upon such issues.
Act VIII of 1859, section 145. This section applies to H. C. and (except the second paragraph) to P. S. C. C.
Plaintiff sued on a bond to recover a sum of money. He filod no written statement, and the case was fixed for final disposal on the 23rd of April, when defendant admitted execution of the bond, but said that it had been delivered as a security to the plaintiff to borrow money and apply it to a special purpose which he had not done. On this, plaintiff's pleader stated that he was taken by surprise, that he had no instructions how to meet the defence, and asked for a postponement, which was refused : Held, the postponement should have been granted - Ameer Ali vs. Run Bahadoor, 7 W. R., 84.
OF ADJOURNMENTS. 156. The Court may, if sufficient cause be shown, at any
stage of the suit, grant time to the parties Court may grant time, and adjourn hearing.
or to any of them, and may from time to time adjourn the hearing of the suit.
In all such cases the Court shall fix a day for the further Costs of
adjourn hearing of the suit, and may make such order ment.
as it thinks fit with respect to the costs occasioned by the adjournment :
Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing to be necessary for reasons to be recorded by the Judge with his own hand
Act VIII of 1859, section 146. This section applies to H. C. and P. S.C. C.
A Civil Court is not competent to bind witnesses by recognizances to attend on a future day. See, however, section 173, infra.
Under Act VIII, 1859, a verbal order of the Court to witnesses requiring them to attend on a future day would not justify the issue of a warrant for the apprehension of such witnesses, if they failed to attend in obedience to such verbal order-Venkatappah vs. Papammah, 5 Mad., 132 ; but as to the present law, see sections 173, 174.
Sufficient Cause. - The plaintiffs made an application in Chambers for the issuing of a commission to England to take the evidence of a material witness, and in support of the application an atfidavit of one of the defendants was used. The Judge referred them to the Court, and on the application being renewed in Court, he declined to take cognizance of what had passed in Chambers, refused the application, as the affidavit was. not in Court, and dismissed the suit : Held, that the Judge should have allowed time to produce the affidavit, and that postponement should not have been refused on that ground-Dadabhai vs. Sorabji, 3 Bom., 55. So where a person sued on a money-bond, and at the trial defendant, admitting the bond, pleaded that it had been given to plain. tiff only as a security for borrowing money and to apply it in a certain manner, and plaintiff's pleader declared that he was taken by surprise and without instructions,-it was held that he should have been allowed another day-Ameer Ali vs. Run Bahadoor, 7 W. R., 84 ; and so also when a petition of objection was filed on the 5th, but the case was not taken up on the day fixed for hearing, as the Judge left the station on the 8th, for an uncertain period (putting the Court in charge of the Subordinate Judge), and on his return he decided the suit on a day not fixed for its hearing, although the objector applied for time to file his documents, it was considered that the objector had shewn sufficient cause for an adjournment-Seetaram vs. She Gollam, 18 W. R., 325.
Not Sufficient Cause. - Defendant was aware some time previous to the trial that his case was coming on. He got ill some ten or twelve days before hearing, but instead of asking for a commission, put in a medical certificate at the trial that he was confined to his bed by lumbago. It was held insufficient to support an application for an adjourn. ment, and the suit was decreed against him-Simon Elias vs. Jorawar Mull, 24 W. R., 202.
Order.- Special notice should be given to the parties of the day fixed ; an adjournment by proclamation is irregular-6 Mad. R., xxix. Once an order for an adjournment has been made, it should not be rescinded on review, unless on good and sufficient cause shewn and in the presence of the other party-Bishen Perkash vs. Ruttun Geer, 20 W. R., 3.
Appeal.-Orders under this section are not open to appeal (section 588); but their propriety can be questioned in an appeal from the final decree (section 591)-Bishen Perkash vs. Ruttun Geer, 20 W. R., 3. Judges in appeal are not inclined to interfere with the inferior Court in exercise of the discretion allowed them to grant or refuse an adjournment-Simon Elias vs. Jorawar Mull, 24 W. R., 202.
Does Lie.-An order made on the settlement of issues fixing a day for final hearing is not an order under this section, and is appealable if made by a single Judge on the Original Side-R. vs. R., I. L. R., 14 Mad., 88.
157. If, on any day to which the hearing of the suit is Procedure if parties adjourned, the parties or any of them fail fail to appear on day to appear, the Court may proceed to dispose fixed.
of the suit in one of the modes directed in
Uu.cum cilit v. 108. auli. 21 Cul. 269.
that behalf by Chapter VII, or make such other order as it thinks fit.
Act VIII of 1859, section 147. This section applies to H. C. and P. S. C. C.
Other Order.-The Court is not bound to proceed under Chap. VII, ante-Hira
unless a day has been fixed for hearing under section 156-Soetaram vs. She Gollam, 18 W. R., 325 ; and it is illegal to decide a case in the absence of any party without fixing a day for the hearing of the case, if the hearing has not taken place on the day originally fixed-Meer Mukhoo vs. Mussamut Ameerun, S. D. (N. W.), 1865, p. 197.
Distinct from Section 158.-The distinction between this section and section 158 is that where there is a default in the appearance of the parties and their pleaders on the date fixed for the adjourned trial of suit, a decree may be passed under this section, and subsequently the case may be revived under section 103, ante, but where time has been given to one of the parties to do an act and he fails, the order passed is under section 158, the matter caunot be revived, but is only subject to review of judgment or to appeal-Ryall vs. Sherman, I. L. R., Mad., 287 ; Sriraja vs. Anumukonda, I. L. R., 7 Mad., 41; Ambalavana Padeiyatchi vs. Subramania Padeiyatchi, 6 Mad., 262; Alvar vs. Seshammal, I. L. R., 10 Mad., 270
See note on section 100, ante.
158. If any party to a suit to whom time has been
granted fails to produce his evidence, or to Court may proceed notwithstanding either
cause the attendance of his witnesses, or to party fails to produce perforın any other act necessary to the furc
ther progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.
Act VIII of 1859, section 148. This section applies to H. C. and P. S. C. C.
Cause Attendance.--"It is the business of the Court, on receiving an application for a summons to a witness, or for a Commission to examine a witness, to consider whether it is likely that the summons can be served or the commission executed so as to bring the witness or his examination before the Court on the day fixed for the hearing. A party has a legal right to ask the assistance of the Court in these matters, and the Court should grant it as a matter of course. It is for the party and not for the Court to consider, whether he can derive any advantage from his application. If he has delayed so long that he fails to get the process executed in sufficient time, he, of course, must take the consequence of his delay, and the Court will not adjourn the case to remedy his neglect. Unless it appears clearly that it is not only improbable, but impossible, for the process to be effectually issued, the application should be complied with. Indeed, I have great doubts whether it should not be complied with in every instance, as it may happen that the case may not be called up for hearing on the day originally fixed, and possibly the witness or the return to the commission might be in Court on the day to which it may be adjourned. If the party to a suit thinks it worth his while to incur the expense of taking a process on the chance of deriving benefit from it, I would not prevent his doing so. I would only take care that he did not use the late issue of the process as an excuse for delaying the final hearing of the case"-Hurree Dass vs. Meer Moazzum, 15 W. R., 447. See the note under section 159, infra.
Object of the Section.-See note under section 157, supra.
This section appears to contemplate a case where any one party and not both Alwar vs. Sheshammal, I. L. R., 10 Mad., 270, has expressly obtained time to produce his evidence, or to procure the attendance of his witnesses, and has failed to do so. It does not refer to adjournments by the Court at its own motion-Pearee Mohun vs. Shama Churn, 19 W. R., 35; and where a case was dismissed for default in paying in the Commissioner's fee and no time was granted, the order was considered to have been passed under section 102, ante, and not under this section-Shaik Saheb vs. Mahomed, I. L. R., 13 Mad., 510; Sriraja vs. Anumukonda, I. L. R., 7 Mad., 71; so when after taking evidence but without entering on the merits, the Court dismissed the suit on the ground o’K., CIV. P.