SMT. BATUAL FATIMA Vs. MOHD. QASIM

JUDGEMENT

(1.) THIS revision application is directed against the order of the Judge, Small Cause Court, correcting the decree passed in suit No. 156 of 1972 and also against the order of the Additional District Judge affirming the trial Courts order.

(2.) IT appears that the plaintiff-opposite party filed a suit in the court of the Civil Judge, Allahabad, for a declaration that he was owner of the house No. 541, Attarsuiya, Allahabad. The suit was however dismissed with costs under O.XVII, R.3 of the Civil P.C. The plaintiff filed an appeal before the District Judge which was treated as miscellaneous appeal. The Additional District Judge dismissed the plaintiffs appeal. Thereupon the plaintiff filed a revision in this Court which was dismissed by me on 31st July, 1978. Meanwhile the plaintiff had made an application before the trial Court for correction of the decree. The trial Court has allowed that application and directed for the correction of the decree so far as the costs of the suit was concerned.

(3.) THERE is no dispute between the parties that the plaintiff-opposite party had filed a suit for declaration of title in respect of the house in dispute. The defendant-applicant filed written statement and contested the suit. Issues were framed and a date for final hearing was fixed. The suit was at one stage dismissed but on the plaintiffs application the ex parte order was set aside and the suit was restored and 19th Jan. 1976, was fixed for final hearing. On that date when the case was called out the plaintiff appeared before the court and after informing the court he went to call his counsel, but thereafter he did not appear. The Civil Judge thereupon dismissed the suit under O.XVII R.3 of the Civil P.C. These facts clearly show that the plaintiff, although present in court, did not produce evidence and he failed to participate in the proceedings. The trial court was, therefore, justified in dismissing the plaintiffs suit under R.3 of O.XVII.