SUNDER BAI Vs. JAGDEV SINGH

JUDGEMENT

(1.) THIS Civil Revision is directed against the order dated 30-08-2005 passed by the Additional District Judge, Balod, District-Durg in Miscellaneous Civil Appeal No. 10/2001 whereby the order of rejection of Plaintiff's application dated 11-09-2001 filed under Order-9 Rule-9 of Code of Civil Procedure, by the 2nd Civil Judge Class-II, Balod, District-Durg (C.G.) in Misc. Civil Suit No. 04/ 2000 was set aside.

(2.) BRIEF facts are that in Civil Suit No. 04/2000, counsel for the Respondent/Plaintiff sought an adjournment on 27-03-2000 on the ground of illness of the Plaintiff. The learned Lower Court noted that the Civil Suit was pending since 1991 and the Plaintiff was not taking any initiative in expeditious disposal. However, considering the reason assigned, it granted an adjournment while directing the Plaintiff to remain present on 07-04-2000 to adduce evidence. It was also directed that the application under Order 26 Rule-9 of Code of Civil Procedure for demarcation of the suit land (L.A. No. 21) would be decided after recording the Plaintiff's evidence.

(3.) THE Plaintiff preferred an application under Order-9 Rule-9 of Code of Civil Procedure for restoration of the suit. THE learned Civil Judge Class-II, Balod, District-Durg dismissed the said application on the ground that there was no sufficient cause for the Plaintiff for not producing evidence on 07-04-2000. Aggrieved by the said order, the Plaintiff/Respondent No. 1 preferred a Miscellaneous Civil Appeal No. 10/2001 in the Court of Additional District Judge, Balod, District-Durg. By the impugned order, this Miscellaneous Civil Appeal was allowed on the ground that the lower Court ought to have decided the application under Order 26 Rule 9 Code of Civil Procedure for the demarcation of the suit land before recording evidence of the Plaintiff. It was also observed that the Civil Judge, Class-II, Balod ought to have considered the fact that Shri Bharadwaj, a new counsel engaged by the Plaintiff was also not present. It also held that since the lower Court had passed an order of dismissal of suit under Order-17 Rule-2 of Code of Civil Procedure, a lenient view granting another opportunity to the Plaintiff to adduce evidence ought to have been taken Consequently, the order dated 11-09-2001 passed by the IInd Civil Judge Class-II, Balod, District Durg in Misc. Civil Suit No. 04/2000 was set aside and the Civil Suit No. l87-A/1998 was restored with a direction to the lower Court to grant a last opportunity to the Plaintiff to adduce evidence. Aggrieved by the said order, the Defendants/Petitioners have preferred this Civil Revision.