NABEESATH BEEVI Vs. ZEEMATH UMMAL

JUDGEMENT

(1.) Plaintiff is the appellant. Her application filed under O.9 R.2, CPC., to restore the suit to file was dismissed by the Sub Court and it is against that this appeal has been filed. To understand the nature of the decision dismissing the suit and the subsequent order refusing to restore the suit to file, some more facts have to be stated. The suit is for partition. The issues in the case were raised on 24-7-1976 and for pre trial steps the case was adjourned to 21-8-1976. On that date there was no sitting. On 23-8-1976 the case was taken up and posted to 18-10-1976. On the latter day stating that the plaintiff and her advocate were absent a judgment was written and pronounced by the Sub Judge dismissing the suit with costs. When the plaintiff applied to restore the suit to file stating that she was laid up and she supported her application with a medical certificate, the learned Sub Judge has dismissed that application also. In the order he stated that the case was posted in the special list for trial to 18-10-1976 and on that day the plaintiff and her counsel were absent. Further the evidence of the plaintiff's husband only shows that the plaintiff was ill, but he was all right. As he was conducting the case on behalf of the plaintiff no satisfactory reason is shown for his absence on 18-10-1976 to give evidence. From this the learned Judge came to the conclusion that the plaintiff was grossly negligent and hence the application was also dismissed with costs.

(2.) It is surprising that in the order the learned Judge has stated that the case was posted in the special list for trial on 18-10-1976. It is not borne out by any other records in the case. The various entries in the Order Sheet referred to earlier will only show that for the pre trial steps the case was adjourned to 18-10-1976. If no steps were taken possibly on that day the court could have adjourned the case for evidence and included it in the special list for the next posting. We understand that to include a case in the special list certain formalities, are prescribed. These formalities are to be followed so that the parties and their counsel get sufficient time and convenience to proceed with the trial on the posting day. No such formality is seen complied with in this case. If this case was included in the special list whether that special list, if any, was prepared with notice to the parties and in the light of the directions given in the circular issued by this Court are all matters for conjecture. It is highly improper on the part of the learned Judge to have taken up the case for the evidence on that day and dismissed the same after writing a judgment. What kind of a judgment he can write in such a case also passes our comprehension. This is a typical instance where the list system is made a laughing-stock. That apart, when the plaintiff has alleged that she was ill and a medical certificate is produced in support of it and her husband is also examined to give evidence on the restoration application, the learned Judge should have at least then noticed his defect in the manner in which the case was disposed of earlier and should not have dismissed the application for restoration. We are satisfied that this is a case where there has not been a proper consideration of the application for restoration.

(3.) In the result, this appeal is allowed. The order passed by the lower court is set aside and the suit is restored to file. There will be no order as to costs.