JUDGMENT : KNOX, PIGGOTT, JJ. We find ourselves unable to support the order passed by the learned District Judge in this case on the grounds taken by him. The ruling which the learned Judge professes to follow namely, Dulhin Sonruj Kuari v. Audhan Singh, Weekly Notes, 1891, p. 112 differs in circumstances materially from the case before us. In the present case the parties to the suit were present in court on the 24th of April, 1910, the day fixed for the first hearing. The witnesses, too, were in attendance on that day, so far as we gather from the order sheet. On that day the parties expressed a desire to compromise the matter in dispute between them and the Court very properly granted time for this purpose. It, however, directed the parties, if they found themselves unable to come to terms, to present themselves again in court with evidence on the 27th of May, 1910. They were unable to agree. On the 27th of May, 1910, the parties were present in court, but the witnesses for the plaintiffs, although summoned to appear on that date had not appeared in court, although the time fixed for the opening of the court and for their attendance had passed by a considerable interval. The plaintiffs' pleader appears to have stated to the Court that the witnesses were coming, but neither then nor afterwards was any application for adjournment put in on the part of the plaintiffs, nor did the plaintiffs apply to enforce the attendance of the witnesses. The Court went on to deal with the case under order XVII, rule 3, and proceeded to decide the suit forthwith against the plaintiffs. The plaintiffs appealed to the District Judge. The District Judge dealt with the case as though the plaintiffs had made a default in appearing, and setting aside the order of the court of first instance, directed that court to restore the suit to its file to be disposed of anew, according to law. His procedure was in error. There had been no default on the part of the plaintiffs. At the same time the Court could by reference to its file, and no doubt did so refer, find that the plaintiffs used due diligence in causing their witnesses to be summoned. His procedure was in error. There had been no default on the part of the plaintiffs. At the same time the Court could by reference to its file, and no doubt did so refer, find that the plaintiffs used due diligence in causing their witnesses to be summoned. It might fairly have presumed from the fact that the witnesses had twice been summoned by the plaintiffs that the evidence of such witnesses was material; that the plaintiffs deemed it material and fully intended to have put it before the court, but were prevented by the non-appearance of the witnesses. It is contended, by the defendants appellants that when this stage had been reached, the plaintiffs, if in earnest, ought to have applied to the court to enforce the power given to the court by order XVI, rule 10, clauses (2) and (3). But it is a matter of experience that parties who have cited witnesses, and who, when such witnesses do not appear, proceed to put them to the indignity of arrest or proclamation, often find such witnesses very unwilling to give evidence on behalf of the persons who have thus acted. We think that, under the circumstances, the court, which certainly had reason to believe that the evidence was material and that the witnesses were failing to attend, so far as it could then judge, without lawful excuse, would have exercised a sound discretion in putting in force the powers entrusted to it by order XVI, rule 10, clauses (2) and (3) of the Code of Civil Procedure. Our attention was called to certain rulings of the Calcutta High Court passed under the previous Code of Civil Procedure, namely, J.G. Bachman v. Lall Beharee Pandey, (1870) 13 W.R., C.R., 324 and Luchmun Singh v. Chokowree Singh, (1876) 25 W.R., C.R., 154. It was urged that there is considerable difference between the present Code and the previous Code so far as the duty cast on the court in this matter is concerned. As we read the present Code, we think that the present Code leaves the court a discretion to proceed at once when witnesses have failed to attend, if from any circumstance before it, it has reason to believe that the evidence of such defaulting witnesses is material, and that the witnesses are defaulting. It would be for the witnesses to show that their absence rested on lawful excuse. It would be for the witnesses to show that their absence rested on lawful excuse. It is urged before us that where a number of witnesses have been cited, it would be casting too great a burden on a court to proceed against all who might have defaulted. The probability is that in such a case the Court would of itself see that the evidence of all such witnesses is not material. The Court can generally make a shrewd guess where witnesses have been unnecessarily summoned. In any case a discretion is allowed by law. We think that the court should have proceeded under order XLI, rule 27, to direct the admission of fresh evidence and under order XLI, rule 25, to refer the issues, which in this case had never been really tried, for trial to the court of first instance, directing that court to return findings. We so far allow the appeal as to make the order just pointed out. Costs will abide the event.