Girdharilal vs Brajmohan and Others

S.K. Seth, J.

This order shall also govern the disposal of connected Civil Revision No. 78/07. It arises out of the cross-suit filed by the applicant against the non-applicant herein.

This is plaintiff''s revision against the order dated 1-12-2006 passed by III Additional District Judge, Fast Track, Barwani in Miscellaneous Appeal No. 08/06. By the said order, the Miscellaneous Appeal preferred by the plaintiff against the rejection of his application under Order 9 Rule 9, CPC was dismissed.

Plaintiff filed a money suit against the respondent. On 21-12-2004 (wrongly mentioned as 27-12-2004 in Paragraph 2 of the impugned order), the suit was fixed for return of the Commissioner''s report. Since the plaintiff and his Counsel were not present when the suit was called out, it was dismissed by the Trial Judge under Order 9 Rule 8 of the CPC. The applicant applied for recall of the said order and restoration of the suit on 8-1-2005. The application was opposed by the other side therefore, after recording the evidence, learned Trial Judge dismissed the application for restoration of the suit on the ground that no sufficient and good cause was made out. Against the said order of the Trial Court, a miscellaneous appeal was preferred and that too was dismissed by the Appellate Court, hence, this revision as is stated hereinabove.

After having heard the rival submissions of learned Counsel for the parties, we are inclined to allow this revision. Shri Mehta, learned Counsel for the applicant submitted that on 21-12-2004, the suit was not fixed for hearing and, therefore, the suit could not have been dismissed when the Counsel for the plaintiff or the plaintiff himself was absent. In support of his contention, Shri Mehta placed reliance on a Division Bench decision of the Calcutta High Court reported in AIR 1920 Cal 204, Satindra Nath Banerjee and Ors. v. Banwari Mukunda Das Nandy Bahadur and Anr. That was a case wherein the suit was dismissed in default on the date fixed for return of Commissioner''s report. The Division Bench held that the suit could not have been dismissed on the date fixed for return of the Commissioner''s report. A similar view is also taken by the Lahore High Court in AIR 1934 Lah 56, hangar Khan v. Zahir and Ors.

Under the circumstances, as indicated hereinabove, we are of the clear opinion that the order impugned is unsustainable in law. Accordingly, we set aside the order passed by the Lower Appellate Court as well as by the Trial Court and it is directed that the Trial Court shall restore the suit filed by the present applicant for its disposal on merit. Similarly, the ex parte judgment and decree passed against the applicant is hereby set aside and the case is sent back to the Court of first instance for its trial from the stage on 21-12-2004 in accordance with law. Thus, both the revisions stand allowed. However, there shall be no orders as to costs.

Let a copy of this order be retained in the file of Civil Revision No. 78/07.