PADMACHARAN MOHANTY Vs. MOTI DEI

JUDGEMENT

(1.) THESE three Civil Revisions arise out of orders made by the trial court which, ultimately resulted in the restoration of Money Suit No. 82 of 1956 in the circumstances hereinafter stated.

(2.) THE matter arose thus: On February 6, 1956 one Binode Behari Sahu filed a suit against the defendants for realisation of house rent in arrear. The said Binode behari died on September 14, 1956 leaving him surviving the plaintiffs as heirs and representatives (hereinafter referred to as the present plaintiffs ). The Court was not informed of the death of the said Binode Behari Sahu until as hereinafter stated. On November 3, 1956, the suit was fixed to be heard and on that date the suit was dismissed for default. On November 23, 1956, the present plaintiffs made an application, stating that the said Binode Behari Sahu had died on September 14, 1956 and that the applicants were his legal representatives and prayed for rehearing of the suit which was dismissed for default as against the original plaintiff binode Behari Sahu who at that time was dead. The said application is said to have been made by the present plaintiffs under Order 9, Rule 9 Civil Procedure code and was marked M. J. C. 363 of 1956. Although there was no specific prayer for substitution, it is said to be in substance an application for substitution of the legal representatives of the original plaintiff Benode Behari Sahu, Apparently, the petition was not in proper form and so technically defective. On April 22, 1957, the said MJC 363 of 1956 was dismissed for default. On September 6, 1957 the present plaintiffs filed an application being MJC No. 273 of 1957 for restoration of their earlier M. J. C. No. 363 of 1956. On May 10, 1958 the said M. J. C. No. 273 of 1957 filed by the present plaintiffs was dismissed on merits. Thereafter, the present plaintiffs filed an appeal from the said order of dismissal being M. A. No. 73 of 1958. During the pendency of the said M. A. No. 73 of 1958, on March 16, 1959 the present plaintiffs filed an application being Misc. Case No. 168 of 1959 before the trial Court under Order 22, Rule 9 (2) for substitution of themselves in place of the original plaintiff Binode Behari Sahu, and also filed an application under Sections 5 and 14 of the Limitation Act for condonation of delay caused by reason of having wrong proceedings not properly advised according to law. It is apparent that after realising the defect in the original application of the present plaintiffs being M. J. C. No. 363 of 1956 filed on November 23, 1956 by which they brought to the notice of the Court that the original plaintiff Binode Behari Sahu had died, the present plaintiffs subsequently on legal advice filed the, said application for substitution being Misc. Case No. 168 of 1959 as aforesaid. After the said application for substitution was property made as aforesaid, the present plaintiffs took no interest in prosecuting said appeal being M. A. 73 of 1958 and allowed it to be dismissed for default on October 26, 1959. Then on May 13, 1960 the said application for 'substitution being Misc. Case No. 168 of 1959 was dismissed for default. The circumstances, -- in which the said misc. Case No. 168 of 1959 is said to have been dismissed for default, -- was that before the summer vacation in May 1960 the trial Court is said to have givers the present plaintiffs an assurance that the case with not be heard before the summer vacation, In spite of the assurance, the said Misc. Case No. 168 of 1959 was taken up and dismissed for default. The following day on 14-5-1960 the present plaintiffs filed an application being Misc. Case No. 144 of 1960 for restoration of their Misc. Case of No. 168 of 1959 for substitution. On November 4, 1960 the plaintiff's said misc. Case No. 144 of 1960 was dismissed on merits. Thereafter, the plaintiffs filed an appeal being M. A. 197 of 1960. On February 10, 1961 the said appeal M. A. 197 of 1960 was allowed with the result that the plaintiffs' said Misc. Case 168 of 1959 for substitution was restored. It is against this order of the learned trial court dated February 10, 1931 allowing the plaintiffs' appeal being M. A. No. 197 of 1960 that the defendants filed Civil Revision No. 117 of 1961 herein.

(3.) AFTER restoration of the plaintiffs' said Misc. Case No. 168 of 1959 for substitution, it was fixed to be heard on April 6, 1961. The defendants had in the meantime filed an application for stay of the said M. J. C. No. 168 of 1959. The learned trial Court, however, on February 6, 1961, --the date on which the said m. J. C. No. 168 of 1959 was fixed to be heard, -- instead of staying the said M. J. C. No. 168 of 1959 restored the plaintiffs' Original Money Suit No. 82 of 1956 which was dismissed for default on November 3, 1956, by when the original plaintiff Binode Behari Sahu was dead, --a fact of which the trial Court was not aware at the time. It is against the said order of the trial Court passed on April 6, 1961 restricting the money suit that the defendants filed another Civil Revision being Civil Revision No. 151 of 1961 here.