SOMARI BAI Vs. SAKUNTALA THAKUR

JUDGEMENT

(1.) BY this revision the applicant has challenged legality and propriety of the order dated 4-2-2002 passed by the 3rd Additional District Judge, Jagdalpur, in Misc. Civil Appeal No. 27/2000 affirming the order dated 5-9-2000 passed by the 1st Civil Judge Class II, Jagdalpur, in Civil MJC No. 3/99, whereby the application under Order 9 Rule 9 of the Code of Civil Procedure, 1908 (for short 'the Code') was dismissed on the ground that the order dated 28-9-99 passed in Civil Suit No. 171- A/98 was under Order 17 Rule 3 of the Code and no application for restoration of the suit is maintainable.

(2.) ORDER is challenged on the ground that the learned Court below has failed to exercise the jurisdiction vested on it by dismissing the miscellaneous appeal as not maintainable on the ground that the order dated 28-9-99 was passed under ORDER 17 Rule 3 of the Code.

(3.) LEARNED Counsel for the applicant submits that on the date of hearing, i.e., 28-9-99 the plaintiff was not present and application for adjournment was filed by Counsel for the parties which was dismissed on the ground that ample opportunity has been given to the plaintiff and the suit was dismissed under Order 17 Rule 3 of the Code, and memo of cost was prepared. LEARNED Counsel further submits that on the date of hearing, i.e., 28-9-99 the plaintiff, i.e., the party was not present, therefore, the Court was only competent to pass order under Order 17 Rule 3 (b) of the Code and the restoration application is competent against such order under Order 9 Rule 9 of the Code, but the learned Civil Judge has dismissed the application illegally, the learned Additional District Judge also dismissed the miscellaneous appeal illegally and failed to exercise the jurisdiction vested on it. LEARNED Counsel placed reliance in the matter of Mohandas and Ors. v. Ghisia Bai and Ors. AIR 2002 SC 2436, in which considering the fact that the suit was fixed for leading evidence by plaintiff, instead of leading evidence plaintiff filed application for seeking better particulars of written statement, application rejected and another application for deleting certain paras in written statement also rejected, after dismissal of such application the application for adjournment on the ground of illness was filed which was also rejected and the Court dismissed the suit under Order 17 Rule 3 of the Code, the Apex Court has held that at the time of such application or order neither the plaintiff nor his witnesses were present, therefore, dismissal of suit under Order 17 Rule 3 of the Code was not proper and the suit ought to have been dismissed under Order 17 Rule 2 of the Code.