In ex-parte cases, the court must consider whether there are any matters that ought to be proved by evidence in addition to having been proved by the admission of the defendant and, if it finds that there are, must state them definitely.

Hallifax, A J C—The plaintiff Bhujang Rao, who applies for revision, filed a suit in the Small Cause Court of Ellichpur on two promissory-notes against one Baliram Thakore. On the day fixed for the final disposal of the suit, the plaintiff ?appeared (by pleader) and the defendant put in no appearance at all. The plaintiff bad no witnesses present, and the learned Judge gave the following judgment:

The point for decision is whether the two pro-notes in suit are genuine. I find them not proved and dismiss the suit for want of evidence.

2. The plaintiff's application in this Court; states the following facts, which would probably not justify revision : When the. Case was called at 12-47 P.M. the plaintiff's pleader informed the Court that he had not turned up and asked for a postponement of the hearing till later in the day, which was refused; the plaintiff and his witnesses, who had been delated on their journey, did in fact turn up within half an hour of the hearing. An application for the restoration of the suit was drawn up the same day, but it was seen that that could not be granted as there had been a decision on the merits not a dismissal in default.

3. The refusal to postpone the hearing for an hour or two can hardly be called proper, but that need not be discussed as the decision on the merits is entirely wrong. Under Rule 5, Order 8, Civil P.C., (and also under Section 58, Evidence Act, which lays down the same rule, at the end in the same words) the Court was bound to treat every allegation in the plaint as proved, except any that in its discretion it might require to be proved by evidence.

4. It is certainly the usual practice, arising out of a vague general memory of this rule, for the Court in all exparte oases to call upon the plaintiff to ''prove his case.'' Such an order is usually taken to m an that the plaintiff has to give evidence of some of the admitted facts. The facts to be so proved are never stated and nowhere defined, though they are generally taken vaguely to include the execution of any document on which the suit is based or the payment; of the consideration for the agreement in question or of something of that sort.

5. There is never anything more definite than that, and in this case there is not even that much. Indeed the dismissal of the suit ''for want of evidence'' amounts to a finding that the plaintiff knew before the Court even began to consider the matter, exactly what the points were which the Court would require him to prove by evidence if the defendant failed to appear, and intentionally refrained from producing evidence on them, so that, he probably had none and, therefore, his allegations on them are probably untrue.

6. This procedure, which is almost invariably followed, is entirely traditional, like that in cases that are called proceedings under Section 115, Criminal P.C.; it has no connexion with any provision of law that exists or ever has existed except that the tradition arose out of a slovenly application of one. The Court does not even purport to exercise its discretion, nor to state what would be the result of that exercise if it were made, that is, the facts that have to be proved by evidence. If anything more were required to show that the whole of this procedure is regarded as a meaningless formality, it is to be found in the fact that the evidence accepted as sufficient almost invariably consists of nothing but a formal repetition by the plaintiff or one of the plaintiffs, as a witness, of some of the statements made in the plaint in reference to the points on which he or his pleader supposes the Court requires such formal evidence. Cases indeed are not uncommon in which the suit has been dismissed because the plaintiff guessed only some of the points and left out one or two.

7. It ought not to be necessary to state the proper procedure, but it is. In every ex-parte case the Court must consider whether there are any matters that ought to be proved by evidence in addition t