VASUDEV PD Vs. GOVIND PD

JUDGEMENT

(1.) This revision petition arises out of the order passed by III Civil Judge, Class II, Mdrena setting aside order of dismissal of suit and restoring it to its original position. The applicant / defendant is aggrieved by the impugned order on the ground that the learned Trial Court in exercise of powers under Order 9 Rule 9, C.P.C. has set aside the order of dismissal, although it is held that the cause for non-appearance shown by the plaintiff was not acceptable or satisfactory. According to learned counsel appearing for the applicants the court could not pass such an order restoring the suit when it was not satisfied with the cause of non-appearance. I have gone through the order under challenge. It is true that the learned trial Court did not accept the explanation given by the plaintiff for non- appearance on 15/3/2001 but in paragraph 8 of the order the court has observed that infact the hearing of the suit on 15th March was fixed for filing compromise. It appears that on the previous date of hearing i.e. in on 20/2/2001 the parties expressed to the Court that there has been some talk about compromise in the matter and therefore they wanted some time and requested for a date for filing compromise and it is in this situation that 15th March w'as fixed for filing of compromise. This being the position it could not be said that 15th March was a date fixed for hearing in the suit and it not being a date of hearing, suit could not have been dismissed under Order 9 Rule 8 C.P.C.. The learned trial court in concluding paragraph 8 of the impugned order infact wanted to say so but as it appears it could not clearly express itself in so many words. Therefore, the order under challenge does not suffer from any illegality or infirmity. A perusal of sub clause 2 of subsection (c) of Section 115 of C.P.C. makes the position clear. It is to be produced for convenience sake. Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding on issue; in the course of a suit or other proceeding, except where- (a) xxx xxx xxx (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury, to the party against whom it was made.

(2.) In the facts and circumstances of the case, it does not appear that the order under challenge shall cause irreparable injury to the applicant if it is allowed to stand because the suit is at its preliminary stage and both the sides will have an opportunity to contest.

(3.) In the light of aforesaid discussion, there appears no merit in the revision petition. It is summarily dismissed.