KOMALCHAND BENIPRASAD Vs. POORANCHAND MOOLCHAND

JUDGEMENT

(1.) THE facts giving rise to this civil revision may shortly be stated as follows; the non-applicant plaintiff Pooranchand filed a civil suit (civil suit No. 31a of 1958) on 25-8-1958 in the Court of the III Additional District Judge jabalpur, challenging the adoption of the applicant-defendant komalchand as the son of one Halkoolal. The suit was dismissed for default of his appearance on 22-4-1959, presumably under Rule 8 of order IX of the Code of Civil Procedure. On the same date an application for restoration of the suit was made by him under Rule 9 of Order 9 ibid, which was registered as Miscellaneous Judicial Case No. 3 of 1959. This application was also dismissed for default of the plaintiffs appearance on 3-9-1959. Against the aforesaid order, dated 3-9-1959, the plaintiff non-applicant on 30-111959 filed an appeal (Miscellaneous (First) Appeal No. 161 of 1959) in the High court under Rule 1 (c) of Order XLIII of the Code of Civil Procedure. This appeal was dismissed summarily by this Court on 29-1-1960; and an appeal (Letters patent Appeal No. 13 of 1960) filed against the aforesaid summary dismissal was also dismissed summarily by a Division Bench of this Court on 21-4-1960. While rejecting the Letters Patent Appeal, the Division Bench observed as follows:

(2.) THIS civil revision first came up for Hearing before Dixit, C. J. who, vide his order dated 27-4-1965, directed that it be placed for hearing before a Division bench.

(3.) THE contention of the learned counsel for the defendant-applicant is that the order dated 3-9-1959 dismissing in default the plaintiff's application for setting aside the dismissal of the suit for default on 22-4-1959 had merged in the order of the High Court dated 21-4-1960 passed in Letters Patent Appeal No. 13 of 1960; and that consequently from and after 21-4-1960 the Courts had no jurisdiction to set aside the order of the trial Court dated 3-9-1959, which had ceased to exist in the eye of law.