BATHINI ERIKALAPPA Vs. GURUGURLA NAGAMMA

JUDGEMENT

(1.) Revision petitioner is the plaintiff in the suit which was dismissed for default by the trial Court, as his counsel reported no instructions on the day on which it stood posted for trial. Therefore, he filed a petition to restore the suit to file and the same was dismissed by the trial Court and that order was confirmed in appeal by the learned Senior Civil Judge. Hence this revision.

(2.) The main contention of the learned counsel for the revision petitioner is that since the revision petitioner is an old man aged about 75 years and was sick on the date to which the case was posted for trial, he could not attend the Court and the learned counsel appearing for the revision petitioner in the trial Court even without informing the revision petitioner has given up his vakalat and so, the Courts below were in error in not restoring the suit. Relying on Malkiat Singh And Another v. Joginder Singh And Others ((1998) 2 SCC 206) he contended that when the counsel for a party reports no instructions the Court should have issued a notice to the revision petitioner before dismissing the suit for default and since that procedure is not followed, the order under revision is unsustainable.

(3.) The contention of the learned counsel for the first respondent is that the revision petitioner was never ready for trial, and as seen from the order under revision, he filed a petition seeking leave to amend the plaint after the suit was posted for trial with a view to drag on the proceedings and so it can be presumed that revision petitioner absented himself willfully and deliberately.