KELU CHARAN PRADHAN AND ORS. Vs. MANI RAM

JUDGEMENT

(1.) FACTS of the case may be stated in brief. Plaintiffs filed a suit for recovery of money on the basis of a promissory note which was registered as No. 32 of 1964 in the Court of the Munsif, Balasore. The suit was valued at Rs. 1,060/ -. On 15th of July, 1966 the Munsif transferred the suit to the Court of the Additional Sub -Judge Balasore, by the following order:

(2.) THE learned Subordinate Judge thoroughly went into evidence and came to the conclusion that the facts and circumstances of the case gave him the impression that the learned Additional Subordinate Judge was a bit hasty and that the occasion for dismissal of the suit would not have arisen had the Plaintiff been given some time to call his advocate. After perusing the order of the Learned Additional Subordinate Judge passed on 15 -7 -1966 dismissing the suit for default we are satisfied that the Additional Subordinate Judge exercised his jurisdiction with material irregularity in dismissing the suit without giving an opportunity to the Plaintiffs who were ready with their witnesses to call their Advocates. Transfer of suits fixed for a particular day for hearing in one Court would ordinarily cause in convenience to the parties and Advocates when they are heard by a different Courts. Advocates as professional men arrange their diaries adjusting their work in different Courts. It is not unlikely that when a suit is transferred all of a sudden they would not be able to spare time to deal with their case in a different Courts. This however does not preclude Courts from transferring suits on the same, day and hearing the same provided they are alive to the convenience of the parties and Advocates. In this case the Advocate and the Plaintiffs were ready. All that the Plaintiffs wanted was to go and call their Advocate. The learned Additional Subordinate Judge rather evinced impatience in nor waiting for a few minutes and dismissed the suit. We are unable to appreciate the attitude of the learned Judge. The learned so ordinate Judge who allowed the appeal reached the correct conclusion. Even on materials recorded by the learned Additional Subordinate Judge in the order -sheet, there was sufficient cause for restoration. Plaintiff 's case for restoration of the suit is irresistible on the facts of this case. Mr. Rath did not rightly assail the finding of fact that there was sufficient cause for restoration.

(3.) MR . Mohapatra, on the other hand, raises two contentions : (1) the transfer of the suit by the Munsif to the Addl. Sub. Judge on 15 -7 -1966 in anticipation of the sanction of the District Judge was without jurisdiction and as such the order of dismissal passed on 15 -7 -1966 is a nullity; and (ii) the High Court should not interfere in exercise of its powers under Section 115 where no injustice has been caused to the Defendants by the restoration of the suit.