MEHTAR Vs. MUSAMMAD JANKI

JUDGEMENT

(1.) AGAINST dismissal of the application filed under Order 9 Rule 7 C. P. C. (which in fact in an application under order 9 Rule 8 C. P. C.), the appellant plaintiff has filed the present appeal Under Order 43 Rule 1 C. P. C.

(2.) THE brief facts leading to the present controversy are, that the appellant filed Civil Suit No. 27-A/87 against the present respondent seeking a divorce on the ground of adultery. On 13th September, 1987 on ex-parte decree was granted in favour of the present appellant but, as an application under Order 9 Rule 13 C. P. C. was filed and ultimately allowed, the said ex-parte decree was set-aside. The case was fixed on 7. 10. 1987 before the Trial Court but none presented on behalf of the appellant, the suit was dismissed under the provisions of Order 9 Rule 8 C. P. C.

(3.) THE appellant thereafter on 13. 10. 1987 filed an application for restoration of the suit. It appears from the record that the said application was ready on 12. 10. 87 but however, was filed on 13. 10. 87 along with the application affidavit of Teekaram, appellant Mehtar and the certificate of the Doctor were filed. On notice the respondent appeared before the Court contested the application and submitted that there was no sufficient cause on part of the appellant for non-appearance when the suit was called on for hearing and therefore the Suit was rightly dismissed The learned Court below recorded the evidence of the parties and after hearing them rejected the application. Hence this appeal by the appellant under Order 43 Rule 1 C. P. C. wherein he has challenged the Order dated 6. 8. 1988 passed in M. J. C. No. 33/87.