STATE BANK OF INDIA Vs. NAND RAM

JUDGEMENT

(1.) This appeal under Order 43, Rule 1(c) of the Code of Civil Procedure is directed against the order dated 4.9.1997 passed by 1st Additional District Judge, Ratlam, in M.J.C. No. 55/96 dismissing plaintiff/appellant's application under Order 9, Rule 9, Civil Procedure Code.

(2.) Plaintiff-the State Bank of India had filed a suit for recovery of debt of Rs. 1,70,820/- against respondents/defendants in the Court below. The defendants remained absent and were, therefore, proceeded against, ex pa'rte. A few adjournments were sought by the plaintiff for evidence and ultimately the cas was fixed for plaintiff's evidence on 3.8.1996. On that date when the case was called on for hearing, Shri Kailash Sharma, counsel for the plaintiff appeared and at the very threshold made an application seeking adjournment on the ground that the witness sought to be examined by the plaintiff has fallen ill, and he was, therefore, unable to give evidence. The learned trial Judge, however, rejected the prayer and vide his order dated 3.8.1996 dismissed plaintiff's suit for want of evidence. Plaintiff thereafter moved application under Order 9, Rule 9, Civil Procedure Code, seeking restoration of the suit and which was registered as M.J.C. No. 55/96. On notice, the defendants again remained absent and were, therefore, proceeded against, ex-parte. However, the Court below vide order impugned dismissed ,he application holding that the order of dismissal of the suit being the one under Rule 3 of Order 17 no,application for resto- ratior under Order 9, Rule 9, Civil Procedure Codd lies.

(3.) 1 have heard Shri D.S. Kale, learned counsel for the appellant. None has appeared for respondents though served duly.