Bidhi Chand vs Suhnu Ram and Another

V.K. Ahuja, J.—The Petitioner has filed the present petition under Article 227 of the Constitution of India against the order passed by the learned Civil Judge (Senior Division), Court No. 1, Hamirpur, dated 7.8.2008, vide which he had dismissed the application under Order 9 Rule 4 read with Section 151 Code of Civil Procedure, filed by the Petitioner for restoration.

A notice of petition was issued to the Respondents, who did not put up appearance inspite of service.

I have heard Learned Counsel for the Petitioner and have gone through the record.

A perusal of the record shows that the suit was filed by the Petitioner/Plaintiff and the issues in the case were framed on 8.2.2007. The first date given for evidence was 23.6.2007, on which date, the evidence was not produced by the Plaintiff, hereinafter referred to as the Petitioner. On next date i.e. 15.11.2007, no evidence was present and adjournment was given for evidence at self responsibility. On the next date i.e. 24.12.2007 also, no PW was present and adjournment was allowed subject to Rs. 300/- as costs. On the next date fixed for evidence, that is, on 29.1.2008, the following order was passed by the learned trial Court:

Repeatedly called, but none appeared on behalf of the Plaintiff. Hence, the suit of the Plaintiff is dismissed in default. The file after due completion be consigned to the record room.

It is clear from the impugned order passed by the learned trial Court that the case was dismissed in default and the Plaintiff and his counsel. There is nothing to show that the order was passed dismissing the petition on any other ground as has been mentioned in the impugned order by the learned trial Court on the application of the Petitioner under Order 9 Rule 4 CPC In the said order, the learned trial Court has also made reference to the fact that opportunities had been given to the Petitioner to lead evidence subject to cost also and the suit was dismissed due to the slackness on the part of the applicant, which fact is not mentioned in the impugned order of dismissal. The ground had been taken by the Petitioner that his counsel had not informed him, though it may not be a valid ground, since the case was fixed for evidence and the Plaintiff was required to produce his evidence. However, keeping in view the facts of the case, the case was dismissed in default and the application for restoration was filed and the costs had been imposed accordingly on the third date for not producing the evidence. The ends of justice will be met in the present case, in case the impugned order is set aside and the Petitioner is given an opportunity to lead evidence subject to Rs. 300/- as costs for setting aside the restoration. The petition stands allowed accordingly. The Petitioner shall appear before the learned trial Court on the date fixed and notice shall be issued to the Defendants, who shall be entitled to get the costs imposed by the learned trial Court on 24.12.2007 and cost of Rs. 300/- as imposed by this Court and thereafter, the case shall be fixed for evidence of the Plaintiff. Petitioner through his counsel is directed to appear before the learned trial Court on 19th October, 2011. A copy of this order alongwith record be sent to learned trial Court.