PEERCHAND Vs. SUBHASH

JUDGEMENT

(1.) THIS petition has been filed under Art. 227 of the Constitution of India against the order passed by respondent No. 4 Additional District Judge, Mandleshwar by which miscellaneous appeal filed by respondent No. 1 has been allowed.

(2.) FACTS material for deciding the petition may be mentioned below. Respondent No. 1 had filed a suit against the petitioner. Respondent No. 2 Collector, Khargone was added as proforma defendant in the said suit. The trial Court respondent No. 3 dismissed the said suit on 3.1.90 in default of appearance of respondent No. 1 (original plaintiff). Feeling aggrieved by the said dismissal of the suit in default, the respondent No. 1 plaintiff filed an application for restoration of the Civil Suit dismissed in default. The respondent No. 3 Civil Judge, Class II, Sendhwa by its order dated 15.7.1992 dismissed the said application for restoration of the Civil Suit as despite several dates of hearing given to the respondent No. 1 he had not produced any evidence. Against the said order of Civil Judge by which the application of respondent No. 1 for restoration of the suit was dismissed, he filed miscellaneous appeal before respondent No. 4 A.D.J. Mandleshwar. An objection was raised before the Addl. District Judge, Mandleshwar that in view of the judgment passed in AIR 1977 Guj. 206 (Grampanchayat v. Patel Bhuraramji) appeal shall not be maintainable. But the said appeal was allowed on cost of Rs. 100/ - and an opportunity was given to the respondent No. 1 to lead evidence. It is this order which is being challenged in this petition.

(3.) IN above view of the matter the petition is allowed. The impugned order passed by respondent No. 4 on 15.7.1993 is quashed and the order passed by respondent No. 3 is maintainable. Looking to the facts and circumstances of the case parties are directed to bear their own costs.