BASANTILAL Vs. KUSUMLATA DEVI BHARGAVA & ORS.

JUDGEMENT

(1.) This is a revision under S. 115 of the Code of Civil Procedure, by the defendant against the order dated 6.5.83, passed in Misc. Civil Case No. 4/81, by Xth Additional Judge to the Court of District Judge, Indore, where by the suit of plaintiff/respn. No. 1 dismissed under order 17 R. 2 the Code of Civil Procedure though dismissed u/o. 17 r. 3 of the Code of Civil Procedure, it was restored to file.

(2.) Short facts leading to this revision petition are that the plaintiff/respondent No. I, filed a suit on 30.6.78, for recovery of Rs. 4,24,000.00, against the Firm and its Partners to which one of the Partners was her husband. After filing of the written statements, by the defendant Nos. 3, 4, and 6, issues were framed on 24th Oct. 1979- After settling the date, the case was fixed recording of parties evidence on 19.12.79. On this date, the case was adjourned at the request of the plaintiff to 20.2.80. On 20.2.80, an application was moved by the plaintiff u/o 26 rule 2 & 4 of the Code of Civil Procedure for her examination and one witness on Commission. On 28.3.80. The Court ordered that the plaintiff is not a 'Pardanashin' lady as regards witness residing at Chandigarh, the court ordered to deposit air-fare for compelling the attendance of the witness in the court but the application under O.26 rule 2 and 4 of the Code of Civil Procedure was dismissed. Again the case was fixed for setting dated on 5.4.1980 and on this date case was fixed to 11th of July, 80, for recording of parties evidence. On 11th of July, 1980, the Court ordered that the plaintiff does not want to press her application for issuance of commission, the Court further ordered that the witness, Suresh chand has refused to take summons, hence, the bailable warrant be issued against him for his appearance, for remaining witnesses, the Court ordered to issue summons. On 29.8.80 and 30.8.80. parties prayed for time and the case was adjourned to 24.10.80 and 25th of Oct. 1980. On 24th of Oct. 1980, the defendant No. 4, moved an application for amendment in the written statement. This application for amendment was allowed on 23th of Oct. 1980, and an additional issue was framed. The case was ordered to be fixed on 3.12.80 for recording of evidence. On 3.12.80, plaintiff and her witness, Bank Manager. Joshi, was present. As the counsel of the plaintiff was out of town, the case was adjourned to 9.1.1981 in ordinary course without any specific direction to performa any act or to keep the witnesses in attendance, except to summon witnesses. On 9th of Jan., 1981, though the counsel of the plaintiff, appeared in the Court and submitted that he has not deposited the process fees for summoning of the witnesses as he remained under an impression that the plaintiff is to be examined on commission and left the court room. On 9.1.81 except for, the presence of plaintiff's Counsel Shri Jhanwar and defendant No. 4's counsel, all other defendants were absent.

(3.) 1.1981, the court refused the adjournment and proceeded under O. 17 R. 3 of the Code of Civil Procedure and dismissed the suit of the plaintiff. The order sheet dated 9th of Jan., 1981, reads as under :