GANESH MASUJI ANER Vs. PANDHARINATH RESHMAJI RANER

JUDGEMENT

(1.) THE Revision is filed by the original plaintiff challenging the orders passed by the learned 2nd Joint Civil Judge (S. D.)Parbhani and the learned District Judge, Parbhani. The petitioner original plaintiff (hereinafter referred to as the plaintiff) instituted R. C. S. No. 87/81 against the respondent original defendant (hereinafter referred to as the defendant) for relief of declaration and perpetual injunction in respect of three pieces of agricultural land situate at village Digras, Taluka and District Parbhani. The plaintiff during pendency of the suit filed an application for injunction restraining the defendant from interfering in possession of the plaintiff over the suit land. The application for injunction came to be dismissed. The dismissal was challenged in the appeal before the learned District Judge and the learned District Judge on 7. 7. 1984 allowed the appeal and granted injunction. Against the decision of the appeal the plaintiff approached this Court by filing Revision Application u/s 115 of the C. P. C. This Court on 27. 8. 1993 disposed of the Revision application by issuing direction to the trial Court to dispose of the suit by the end of December 1993 and continued interim relief granted by this court on 3. 8. 1984 till the suit is decided. After the order passed by this court the suit proceeded with. The defendant though appeared did not file written statement and the learned Civil Judge on 14. 6. 1994 passed on order of no written statement and directed that the suit be proceeded without written statement. The defendant filed an application vide Exh. 54 for setting aside no written statement order. The said application came to be rejected. After 14. 6. 1994 it appears that the suit was adjourned at the behest of the defendant on the ground that the defendant desires challenge the order passed by the Court of no written statement but however, it appears that no written statement was filed. The suit was adjourned to 30. 6. 1994. On 30. 6. 1994 the suit did not proceed with as the Presiding Officer was not available as he was on training. The roznama shows that the case is adjourned for evidence. On 7. 7. 1994 the suit was called out, it appears that plaintiff was absent on that day when the suit was called. His advocate made aplication seeking time to file affidavit as at earlier occasion the plaintiff was directed to prove his case on affidavit. The learned Judge dismissed the said application for adjournment dismissed the suit for want to prosecution U/o 17 Rule 3 of the C. P. C. After dismissal of the suit by the above said order, the plaintiff filed application for restoration of suit which was numbered as Misc. Application No. 62/94. On the said application notice was issued to the respondent-defendant, in response to the said notice the defendant appeared and filed his say at Exh. 15 and denied all the contentions. He stated in the application that there were rain and the plaintiff was not feeling well as such he informed advocate to take short adjournment for filing affidavit. It is contended that this fact was communicated to Shri vithalrao for filing the application. The application for adjournment was filed by the advocate which was rejected and the suit was dismissed in default. Immediately the plaintiff after one hour appeared in the Court, contacted his advocate and told the advocate that he was having temperature and he was to go to the doctor. It is stated in the application in para No. 6 which runs thus:

(2.) REJECTION of the said application by the 2nd Joint Civil Judge (J. D.)Parbhani on 31. 3. 1995 the plaintiff preferred Misc. Civil Appeal No. 25/95 before the learned District Judge, Parbhani. The learned District Judge after hearing the learned counsel appearing for the parties raised the point as to whether the appeal is maintainable. The learned District Judge held that the appeal is not maintainable. It was contended before the learned District Judge that the order passed by the learned Civil Judge being appealable order, the appeal is maintainable. It was contended by the learned counssl for the appellant before the learned District Judge that order 7 Rule 2 being an exception to Order 8 Rule 9 of the C. P. C. and in view of the provisions of Rule 4 of order 9 the appeal is maintainable u/o 43 of the Code. The learned District Judge negatived this contention and by the order dated 19. 4. 1997 dismissed the appeal as not maintainable.

(3.) THE orders passed by both me Courts below are challenged in this revision Application by the plaintiff. The learned counsel Shri Deshmukh, appearing for the plaintiff contended that the dismissal of the suit by the learned trial Judge was under Order 9 Rule 8 of the C. P. C. and for restoration of the said suit an application as contemplated under Rule 9 of Order 9 came to he filed and that application was rejected. Therefore, under the provisions of Order 43 Rule 1 (c) of the C. P. C. the appeal was maintainable before the learned District Judge and the learned District Judge should have considered the appeal on merit. Shri Deshmukh, therefore, contended that while passing order the learned trial Judge in turn stated that the suit is dismissed U/o 17 Rule 3 of the Code but in fact, the case is governed by Order 9 Rule 8 of the C. P. C. Therefore, the dismissal was under Rule 8 of Order 9. Shri Deshmukh, contended that the suit was fixed on 7. 7. 1994 for the evidence of the plaintiff i. e. by filing affidavits and the advocate for the plaintiff was present when the suit was called and as the affidavit was not ready the suit came to be dismissed. Therefore, he contended that on the date when the suit was fixed the parties were present (through their advocate ). He contended that the recourse taken by the learned Judge to Rule 3 of Order 17 was uncalled for as the party was present before him when the suit was called. The learned counsel further submitted that the trial Court should have considered the fact that suit was dismissed in default and on very day the application for restoration of the suit was filed. The proper reasons were assigned for absence of the plaintiff on that day in the application itself, wherein it is stated that the plaintiff could not reach the Court because of the heavy rains and on illness of the plaintiff there was sufficient reasons for the plaintiff for non remaining present on that day. When the plaintiff got the information about the dismissal of the suit, he rushed to the Court and contacted his advocate, but after court hours the application for restoration came to be filed. Therefore, the learned counsel contended that the application for setting aside dismissal was filed on the same day, the learned Judge should not have taken the harsh step to reject the application. He therefore, submitted that this is a fit case where this Court should interfere in the order passed by the Court. He submitted that the suit relates to valuable immovable property, the dismissal of the suit may come in his way future, therefore, the defendant can be compensated by awarding costs by the plaintiff.