PADMA Vs. RAINSI RAM

JUDGEMENT

(1.) THE applicants have filed the instant revision against the order dated 5.1.2008 passed by the District Judge, Jashpur, in unregistered miscellaneous appeal whereby the learned District Judge has dismissed the appeal filed against the order of dismissal of the application filed under Rule 9 of Order 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as' Code') on the ground that the order passed by the Court below was under Rule 3(a) of Order 17 of the Code and not under Rule 3(b) of Order 17 of the Code.

(2.) I have heard learned Counsel for the applicants and learned Panel lawyer for State/Respondent No. 5 and perused the order impugned and other documents filed on behalf of the applicants. Learned Counsel for the applicants frankly admits that the applicants were required to file application under Section 5 of the Limitation Act, 1963 before the trial Court or were required to explain the delay in filing an application beyond the period of limitation but bonafidely and under bonafide willing, they have not filed such application and have not elaborately mentioned the fact in the application filed under Rule 9 of Order 9 of the Code but precisely mentioned the fact that after passing of the order dated 14.2.2006 they have applied for a copy of the order and after obtaining a copy of the order they have filed an application within 30 days from the date of receipt of a copy of the order. Learned Counsel vehemently argues that on the date of the order dated 14.2.2006 passed by the Civil Judge Class-I, Jashpur, both the parties were not present and an application for adjournment under Rule 1 of Order 17 of the Code was filed on behalf of the applicants/Plaintiffs and the same was dismissed. Learned Counsel further submits that at the time of order of dismissal, the applicants/Plaintiffs were not present and therefore, the Court of first instance was not competent to proceed or to decide the suit in accordance with Clause (a) of Rule 3 of Order 17 of the Code, but the Court was competent to proceed under Rule 3 of Order 17 i.e. in accordance with Order 9 of the Code, but the appellate Court has wrongly dismissed the appeal on the ground that the application filed under Rule 9 of Order 9 of the Code was not tenable before the trial Court on the assumption that the trial Court has proceeded and passed the order under Rule 3(a) of Order 17 of the Code. On the other hand, order impugned is supported on behalf of the Respondent No. 5/State. Order dated 14.2.2006 passed by the Civil Judge Class-I, Jashpur shows that on the date of hearing, both the parties were not present and an application for adjournment was filed on behalf of counsel for the applicants/ Plaintiffs. In the absence of the parties, the Court was not competent to pass any order in terms of Clause (a) of Rule 3 of Order 17 of the Code. The Court was only competent to proceed under Rule 2 of Order 17 in accordance with Order 9 of the Code and the Court of first instance has dismissed the suit under the provisions of Rule 2 of Order 17 in accordance with Order 9 of the Code of Civil Procedure.

(3.) FOR the foregoing reasons, the revision is allowed. The order dated 5.1.2008 passed by the District Judge, Jashpur is hereby set aside. The case is remitted back to the First Appellate Court for hearing the case and passing the order afresh. Registry is directed to send the records forthwith to the Court below. No order as to costs.