SIDDHU Vs. GORELAL

JUDGEMENT

(1.) THIS revision is directed against the order dated 29.7.97 passed by A.D.J. Narsinghgarh in Misc. civil appeal no. 2/96 whereby the order passed by Civil Judge, Class -II on 20.3.96 in M.C.J. No. 17/95 dismissing civil suit no. 121 A/91 filed by applicant -plaintiff was confirmed.

(2.) THE facts of the case, in brief, are that on 5.5.95 civil suit no. 121 A/9 was fixed for evidence of the plaintiff. On this date, neither the plaintiff nor his witnesses were present in the Court, however, the counsel for the applicant made an application for adjournment on the ground that the plaintiff was suffering from fever and was not in a position to attend the Court. The trial court observed that more than 10 adjournments had been granted to the plaintiff for producing his witnesses. He was deliberately indulging in delaying tactics and dismissed the suit. The applicant -plaintiff made an application under Order 9 Rule 9 C.P.C. for restoration of the suit which was registered as M.J.C. No. 17/95. It was dismissed by the Trial Court vide its order dated 20.3.96 holding that the suit was dismissed under Order 17 Rule 3 C.P.C., therefore, application under Order 9 Rule 9 C.P.C. was not maintainable. The applicant filed Misc. appeal no. 2/96 but that too was dismissed vide impugned order dated 29.7.97 holding that the suit was dismissed under Order 17 Rule 3 on 5.5.95 and, therefore, application under Order 9 Rule 9 C.P.C. was not maintainable. Hence, this revision.

(3.) SHRI Chhazed, LC for the applicant, submitted that making of application for adjournment of the case by the counsel of the applicant does not amount the appearance of the plaintiff. On the other hand, Shri Kutumble, LC for the non -applicant, submitted that the counsel for the applicant not only appeared in the case but participated in the proceeding and made application for adjournment and after dismissal of the same, he left the court, therefore, it must be deemed that the plaintiff appeared through his counsel.