SUBHASH MATAJI PULATE Vs. LAXMIBAI SOMAJI KHILLARE

JUDGEMENT

(1.) BY this revision application, the original defendant challenges the order passed by the Civil Judge, Senior Division, Pusad, on 22-1-1998, in MJC No. 5 of 1994 whereby the said Judge allowed the MJC and restored Regular Civil Suit No. 94 of 1991 back to file. The said civil suit was dismissed in default on 21 -12-1993 and the present respondent (original plaintiff) preferred application for restoration under Order 9, Rule 9 of Civil procedure Code. The suit was filed for permanent injunction to restrain the present revision applicant and one Bakaram Nago Khillare from disturbing or otherwise interfering with possession and user of suit land by present respondent No. 1 as plaintiff. Bakaram Khillare was defendant No. 1 in that suit and present revision applicant Subhash is defendant No. 2 in that suit. Bakaram was joined as respondent No. 2 in this revision and he has expired during its pendency.

(2.) IT appears that the said suit was fixed before the trial Court for evidence on 21 -12-1993 and on that day, the plaintiff as also both the defendants were present. The adjournment application was filed and it was rejected. It appears that the trial Court has given several chances to original plaintiff to adduce evidence but she did not lead evidence and did not obey earlier directions given by the Court for that purpose. The trial Court, therefore, found that the plaintiff has failed to adduce evidence and prove her contention. It, therefore, dismissed the suit. The application for restoration was filed by the plaintiff-present respondent mentioning that the suit was instituted on 26-9-1991 and when it was fixed for evidence on 21-12-1993, talks regarding compromise has taken place between the parties and as such respondent could not lead the evidence. It is further mentioned that his Advocate was busy in another work and hence the application for adjournment was filed which came to be rejected. The deceased Bakaram in restoration proceedings filed his reply and conceded that talks of compromise were going on between the parties and therefore, respondent No. 1 could not lead evidence. However, the present revision applicant denied that any talks of compromised were going on between the parties and stated that the order of dismissal was just and proper and suit did not deserve to be restored back. The trial Court in the facts and circumstances of the case found that the talks of compromise were in fact going on between the parties and though respondent No. 1 adduced evidence, nothing to the contrary could be shown in her cross-examination. It has further found that present revision applicant did not adduce any evidence in rebuttal. It is in these circumstances that the trial Court on 22-1-1998 was pleased to allow the application and restore the suit back to file.

(3.) THE original defendant No. 2- Subhash has filed this revision and only grievance made during argument before this Court is that the application under Order 9, Rule 9 of Civil Procedure Code for restorations of suit was not at all maintainable as the orders passed were orders under Order 17, Rules 3 (a) as both the parties were present before the Court at the time of passing of order of dismissal of suit. It is the contention that the suit has not been dismissed in default as provided under Order 17, Rule 2 of Civil Procedure Code.