The legal principle established is that evidence taken on commission need not be formally tendered at trial to be considered as evidence in the case, and the appropriate procedure for dealing with a suit in the absence of the plaintiff depends on the presence of materials on the record.

JUDGMENT

Mitter, J. - This appeal is directed against an order of the Subordinate Judge of 24 Perganas dated 29th August 1930 by which he returned the plaint of the plaintiff, now appellant, in a partition suit valued at Rs. 3,80,101 to be filed in the proper Court. He made the order in the absence of the plaintiff' and held on such materials as had been put before him by defendant 6, Raja Promatha Bhusan Deb Ray of Naldanga, that the Alipur Court had no jurisdiction to entertain the suit as none of the properties which formed the subject-matter of partition lie within the jurisdiction of that Court. Hence the present appeal.

2. Two questions have been debated before us in the appeal: (1) whether the Subordinate Judge should have proceeded to deal with the suit under the provisions of C.17,R.2 instead of proceedings under Order 17, Rule 3, Civil P.C.; (2) whether the materials before the Court were sufficient to justify the conclusion that the Alipur Court had no jurisdiction to entertain the partition suit. (After stating the case of plaintiff and that of the defendant as given in the plaint and written statement, the judgment proceeded). Several issues were framed. It is necessary to notice issue 1 which runs as follows: "Has the Court jurisdiction to try this suit," On 10th June 1930 defendant 6 put in a petition praying for decision of issues 1 and 2 first. Issue 2 related to the insufficiency of court-fees. On 20th June the Court ordered that the issue of jurisdiction and court-fees should be taken up first, and fixed 29th July 1930 for hearing of those issues and directed the parties to come with evidence on that date. On 21st August the defendant was ready with his witnesses on the question of jurisdiction but plaintiff was not ready and the Court adjourned the hearing of the issues to 29th August and remarked that as the case was more than eight months old no further adjournment would be given and directed the payment of adjournment costs to defendant. On 29th August plaintiff did not appear and did not pay the adjournment costs. The defendant was ready with his witnesses. In the meantime some of the witnesses had been examined on behalf of the defendant and the learned Judge passed a cryptic order to the following effect:

From the evidence taken on commission it appears that this Court has no jurisdiction to go on with the case. Ordered that the plaint bo returned to the plaintiff's pleader for presentation in the proper Court,

3. The plaintiff has preferred the present appeal and two points have been taken on behalf of the appellant: (1) that the Court should not have returned the plaint but should have dismissed the suit altogether as plaintiff was absent and the provisions of Order 17, Rule 2 of the Code applied; (2) even if the provisions of Order 17, Rule 3 applied the evidence does not justify the conclusion that the Subordinate Judge had no jurisdiction to try the suit. With reference to ground 1 taken it is said that as the plaintiff was absent and did not produce the evidence on the point of jurisdiction the proper rule applicable was Order 17. Rule 2. and not Rule 3 and in support of this contention reliance has been placed on a number of authorities. There is a conflict of authorities on this point in different High Courts in India. The High Court of Madras has held that the Court should in such a case proceed under Rule 2 and dismiss the suit for default so that the plaintiff may have an opportunity to apply under Rule 9, Order 9 to set aside the dismissal: Pichamma v. Sreercmulu (1918) 41 Mad 286 . The High Court of Bombay takes the same view. In Allahabad the balance of authority is in favour of this view; (Firm) Ganeshi Lal Harnarain Vs. Debi Das . The Patna High Court has held that this rule does not apply unless the hearing is commenced: Mahabir v. Sheo Dayal AIR 1928 Pat 167. The Lahore High Court has held that if there are no sufficient materials the Court should proceed under Order 17, Rule 2; otherwis