BABULAL RAMCHARAN Vs. CHHOTEKHAN LAL KHAN

JUDGEMENT

(1.) THE defendants are aggrieved by an order passed by the trial court whereby the suit instituted by the non-petitioner has been restored. On november 3, 1969 the suit was dismissed for non-appearance of the plaintiff. That date had been fixed for framing of issues. On November 18, 1969, the plaintiff made an application under Order 9, Rule 9, Civil Procedure Code for restoration of the suit stating that on the 3rd November 1969 he was suddenly down with fever and his counsel was busy in another Court when the case was called on for hearing. In support of his application, the plaintiff filed his affidavit. The defendants opposed the application for restoration.

(2.) THE trial Court did not record any evidence but on the above material ordered restoration of the suit. It has observed that there was sufficient cause for non-appearance of the plaintiff. It has made a specified mention of the fact that the date on which the suit was dismissed was for framing of issues. He did not award costs to the defendants.

(3.) IN this revision, Shri M. M. Jain, learned counsel for the defendants contends that the order of the trial Court is invalid, and not in accordance with law. No reasons are given in the impugned order. The date for framing of issues was a "date of hearing" and it was obligatory for the plaintiff to appear on that date. There was no legal evidence to support the plaintiff's case for non-appearance. The affidavit filed by the plaintiff was no legal evidence. It was merely for the prima facie satisfaction of the trial Court. The learned counsel has relied on several decisions of this Court. Suffice to mention three of them: -Mithailal Gupta v. Inland Auto Finance (1967 MPLJ 776=air 1968 MP 33), Anand Swaroop v. Kishanchand (1961 MPLJ Note240=1961 JLJ 1239) and E. S. I. Corporation v. Harcharansingh (1969 MPLJ 550=1969 JLJ 725 )