BENI RAM Vs. SONPAL

JUDGEMENT

(1.) IT appears that the suit was fixed for final hearing on 1 -12 -1966. On that date a Plaintiff's witness was to be examined. That witness, however, who was an expert in handwriting, was unable to come. The Plaintiff applied for adjournment of the hearing. The learned Munsif passed the following order:

(2.) IT so happened that the date 17 -1 -1967 fell in the period during which the Civil court staff was on strike. No work was done in the Court on that date. In the English Notes of the learned Munsif there is an entry 17/31 -1 -1967 to the following effect:

(3.) ON 8 -3 -1967 the Plaintiff filed an application for the restoration of the suit to its original number. It was stated in the said application that the Plaintiff was prepared to pay the costs on 7 -3 -1967 and the suit was called up for hearing but the Defendant's counsel declined to accept it because of the objection that the suit already stood dismissed. All the circumstances under which the costs as ordered on 1 -12 -1966 were not paid were narrated and it was averred that the Plaintiff was always prepared to pay the costs but on account of the circumstances beyond his control due to strike of the Court staff the order could not be complied with, The application was moved Under Sections 148, 151 and Order 9, Rule 9, Code of Civil Procedure. It was also prayed that the time to pay the costs be extended and the order dated 1 -12 -1966 be set aside. This application was dismissed by the learned Munsif by his order dated 22 -4 -1967. The Plaintiff then filed an appeal. He sought an amendment in his application during the pendency of the appeal for adding in the prayer clause that the order dated 17 -1 -1967 and 7 -3 -1967 be also set aside. The appellate court considered the amendment to be unnecessary but rejected the application mainly for the reason that if the amendment were allowed it would have the effect of setting aside the order of the court below. The appeal was then finally heard and was dismissed on 6 -1 -1968 on the ground that it was not maintainable. The appellate court took the view that the order of the learned Munsif which automatically resulted in the dismissal of the suit could not be said to be an order Under Order 9 of the Code of Civil Procedure, therefore, not appealable and no application Under Order 9, Rule 9, Code of Civil Procedure lay. It considered that the application of the Plaintiff could properly be treated as one Under Sections 148, 151 of the Code of Civil Procedure and an appeal against its rejection was incompetent. The Plaintiff has now come up in revision against the said order.