HANDLOOM SAREE BHAWAN Vs. LIBERTY STORES

JUDGEMENT

(1.) This revision petition by the plaintiff/petitioner under Section 115 of the Code of Civil Procedure is directed against the order of learned Sub-Judge 1st Class, Delhi, dated 21 October 1986 whereby the suit of the plaintiff for recovery of Rs. 18,500.00 was dismissed under order 17 Rules 2 and 3 Civil Procedure Code or failure on its part to produce any evidence on the date fixed for the purpose While observing that even the plaintiff himself did not appear in the witness box and hence there was no need to give issue wise finding, the court has concluded that evidence has not been adduced by the plaintiff despite sufficient opportunity.

(2.) In this petition the defendants/respondents were served by publication. At the time of admission of the petition it was directed that actual date notice shall issue to the respondents as also to Mr. Umesh Mishra, Advocate who was representing the respondents on the Trial Court. The service report on the actual date notice issued to the respondents is that they have avoided service. Mr. Umesh Mishra has been served. I am satisfied that the respondents have been duly served in the petition. No one is present on their behalf. I proceed to dispose of the matter, which is pending for almost a decade.

(3.) Mr. Atul Kumar, learned counsel for the petitioner has contended that since the defendants were absent on the date of hearing, the Trial Court instead of summarily dismissing the suit under Order 17 Rules 2 and 3, C.P.C, should have proceded under Order 9 C.P.C. His submission is that the Trial Court having wrongly applied provisions of Order 17 Rule 3, C.P.C, it has acted with material irregularity and, therefore, the revision petition deserves to be accepted.