JUGGI LAL KAMLA PAT Vs. RAM JANKI GUPTA

JUDGEMENT

(1.) This is an appeal from an order of the IInd Civil Judge, Kanpur, dated 28-5-57 refusing to restore the suit dismissed for non-appearance of the plaintiff.

(2.) The plaintiff firm filed a suit through its partner Sri Padampat Singhania tor recovery of Rs. 4,11,367/14/9 against the defendants on 18-5-53. The defendants filed written statements denying the claim and pleading a bar of limitation. Issues were struck on 1-2-54. Thereafter, several adjournments of the date fixed for hearing were made by the court, both suo motu and at the instance of the parties. Four such latter adjournments had been obtained by the defendants and three by the plaintiffs.

(3.) On 8-12-55 the case was transferred to the file of the IInd Civil Judge, Kanpur, who eventually fixed 23-5-56 for final hearing of the suit. On 22-5-56 an application was filed by one P. C. Jain on behalf of the plaintiff for adjournment On the ground that the Plaintiff's senior counsel, Sri Rammath Seth, had gone to England and that his presence was necessary for the proper prosecution of the case. The defendants' counsel Sri Devendra Swarup made the following endorsement on the said application: "No objection on personal ground of Mr. Seth." The application for adjournment was rejected by the Civil Judge on 23-5-56 on the finding that P. C. Jain was neither a party nor counsel nor an authorised agent of the plaintiff and, as such, the application could not be taken to have been properly presented. A second application was then moved by Sri Gopinath Dikshit, counsel of the plaintiff, accompanied by an affidavit. The court ordered the application to be put up for disposal on 24-5-56, observing that the defendants wanted time to meet the allegations of the plaintiff. It was also ordered that parties should come prepared with their evidence. On 24-5-56 Sri Gopinath Dikshit, counsel of the plaintiff informed the court that he had no instructions to press the application for adjournment. Thereupon the court rejected the application, holding that the affidavit filed in support of the application had not been properly sworn and that the counsel representing the plaintiff had stated that he had no instructions. The suit was accordingly dismissed for default of the plaintiff.