SATPALSINGH AMOLAKSINGH BAGGA Vs. SANDHYA AMITABH PANDEY

JUDGEMENT

(1.) This Civil revision under section 115 of the code of Civil Procedure is filed by original defendant taking exception to the order dated 25th January, 2002 passed by Additional District Judge, Araravati in Misc. Civil Appeal No. 132 of 1996. By said order the learned Appellate Court has set aside the order of trial Court refusing to restore civil suit dismissed in default by it on 16-10-1996 passed in R. M. J. C. No. 135/1995. The said R. M. J. C. was filed by present respondent with prayer to restore Special Civil Suit No. 245/1992 filed by her back to file by setting aside the dismissal on 28-7-1995. R. M. J. C. was filed under Order 9, Rule 9, Civil Procedure Code by her for that purpose.

(2.) Facts as pleaded by respondent/original plaintiff in application under order 9, Rule 9 reveal that she filed special Civil Suit claiming relief of specific performance on the basis of agreement of sale against the present revision applicant vide Special Civil Suit No. 245/1992. It appears that she was originally residing at Amravati being daughter of one Doctor R. G. Wani. After marriage she shifted to husband's place i. e. the Jhansi in Uttar Pradesh. She gave power of attorney to her father but he could not attend the Court on account of his own ill- health and under the impression that he would improve, dates were obtained from trial Court for leading evidence. Last application in this respect was moved vide exhibit 42 for enabling the respondent to make alternate arrangement either by appointing another person as power of attorney or to cancel it and for her own appearance to give evidence. That application was rejected by trial court and the suit came to be dismissed. The respondent further states that between 22-4-1995 to 24-6-1995 her father was ill and bedridden with his son at Bangalore and was thereafter at Bombay between 24-6-1995 to 7-8-1995. It is mentioned that he returned to Amravati on 7th August, 1995 but continued to take treatment. Hence application at exhibit 42 came to be moved which was rejected and suit came to be dismissed. Her application under Order 9, Rule 9 was opposed by present revision applicant/original defendant. The respondent herself entered the witness box and she was subjected to cross-examination. The trial Court considered this evidence and after noticing the conduct of respondent on earlier dates and request made in application at exhibit 42, the trial Court found that once time was given to respondent to appoint another person as attorney and she failed to take steps in pursuance thereof. The trial Court has thereafter considered the case relied upon before it i. e. AIR 1989 Calcutta 91 between Dulalchandra vs. Bhanumati and found that no case was made out for restoration of civil suit back to file.

(3.) The Appellate Court found that prayer for appointment of Commissioner or to take appropriate steps as contained in exhibit 42 was made for the first time on 28-7-1995 and the trial Court ignored the fact that though several adjournments were earlier taken, all were granted by it. The Appellate Court thereafter has observed that the suit was for specific performance and huge amount was involved in it and as such, merely because some admissions were given in her oral evidence by the respondent, it was not proper or justifiable to deny her an opportunity to get the decision on merit. It therefore allowed the appeal subject to payment of cost of Rs. 1000/- by respondent to the petitioner. It is this order which is challenged in present Civil revision application.