DR. LAKHIRAM GUPTA Vs. S. PAIKRAI

JUDGEMENT

(1.) PLAINTIFF Petitioner filed Money Suit No. 45 of 1972. The suit was posted to 10 -3 -1975 for hearing. Plaintiff was not ready on that date and a petition for adjournment was filed on his behalf. Defendant had summoned one witness from Berhampur and it was submitted on behalf of the Defendant that the witness is a costly one and his attendance cannot be procured easily in future and as such prayed that his evidence should be recorded even though the suit was adjourned. The Court allowed the prayer and evidence of that witness was recorded. The suit was then posted to 9 -6 -1975 for hearing. This was a morning Court. At about 7 a. m. the Court waited for 10 minutes and as both sides were absent, the Court closed the matter and posted the case to 9 -6 -1975 for judgment. Sometime thereafter on that very day Plaintiff attended the Court along with his witnesses and filed a petition to recall the earlier order of the day and to allow him to examine his witnesses. It was averred in the petition that while the Plaintiff was coming by a vehicle, the vehicle gave some trouble on the way and as such he was stranded and consequently could not attend the Court in time. An affidavit in support of the aforesaid averment was filed on the following day. The Defendant did not file any objection. The learned Munsif rejected the petition stating that as he bad already examined one witness, the provisions of Order 17, Rule 3 will be applicable and as such the petition filed by the Plaintiff was not maintainable. As against this order the present revision has been filed.

(2.) THE learned Munsif had not passed any order dismissing the suit either for default or on merit. He had only posted it for judgment and at that stage the Plaintiff came with his witnesses and requested the Court to hear the suit. There was no appearance for the Defendant. In view of these circumstances the question of application of provisions of Order 17, Rule 3 does not exist. The Court was sitting in morning and at about 7. 10 a. m. the case was closed. But sometime thereafter the Plaintiff appeared in Court with his witnesses and requested the Court to hear the suit. The Court should have given opportunity to the Plaintiff to adduce evidence as he had not finally disposed of the suit.

(3.) IN the result, the civil revision is allowed. The impugned order of the learned Munsif is set aside. He is directed to take up hearing of the suit by fixing a date and after giving notice to the parties. The lower. Court records be sent back immediately. As there is no appearance for the other side, there will be no order as to costs.