TARUN PLASTICS Vs. JAMNADAS LAXMICHAND

JUDGEMENT

(1.) THIS is an appeal from the Order of the learned Judge of the City Civil Court, Bombay, on the Plaintiffs Notice of Motion in Suit No.8053 of 1970 for restoration of the suit, which was dismissed on 20th August, 1971. Mr. Parekh on behalf of the respondents has pointed out that on this date, when the suit was dismissed, both the plaintiffs and the defendants were absent, so that the dismissal must be deemed to be one under Order IX Rule 3 and the Order on the Notice of Motion must be deemed to be one under Order IX Rule 4.Orders under Order IX Rule 4 are not made appellable under Order 43 of the Civil Procedure Code. There is substance in this contention. Hence I propose to convert this appeal into revision and treat it as one.

(2.) MR. Parekh has then urged that the learned Judge has exercised his discretion properly and that this was not an appropriate matter in interfering with a well considered order in the limited revisional jurisdiction of the High Court. There is also some substance in this contention. But the view taken by the lower Court is somewhat harsh and over-technical and in the interest of justice, I think it is the duty of this Court to correct this order.

(3.) IT is true that after this order, no steps have been taken by the Plaintiffs Advocate or by the Plaintiffs for making their affidavit of documents or any letter written asking the defendants to make their affidavit of documents and giving and taking of inspection of the documents disclosed. IT has to be remembered, however, that such conduct would be perfectly consistent with the belief of the Advocate that the suit had been transferred to the list of Long Causes and if it was so transferred, it would not have come up for hearing in the normal course for atleast 10 years more. IT is true that if a theoretical or technical view is taken even after the suit was transferred to the list of Long Causes, the parties were required to make their affidavit of documents within four weeks and give and take inspection within 2 weeks thereafter, which may be considered to be the usual order for discovery and inspection. But such discovery and inspection can never be insisted upon or made a ground for penalising the party, when even if such discovery or inspection is made, the Court would have been unable to give a hearing to the party for nearly 8 to 10 years thereafter.