ADALA PADMANAVA PATRO Vs. ADALA MADHUSUDAN PATRO

JUDGEMENT

(1.) THIS is a revision against the orders passed by the learned Courts below rejecting the petition under Order 9, Rule 9, C.P.C. to restore the suit.

(2.) THE short facts of the case is that the petitioner as plaintiff filed title Suit No. 45 of 1992 in the Court of the Civil Judge ( Junior Division. ) Berhampur for permanent injunction restraining the opposite parties from interfering in his possession. The suit was posted to 27.4.94 for hearing and on that date, the plaintiff -petitioner remained absent, for which his Advocate had filed an application praying for adjournment of the case. The petition for adjournment was rejected and the suit was dismissed for default of the plaintiff. An application under Order 9, Rule 9, C.P.C. was filed for setting aside the order of dismissal and for restoration of the suit to file, which was registered as M.J.C. No. 131 of 1994. Civil Judge (Junior Division), Berhampur, on consideration of the facts and circumstances of the case, found that there was no sufficient ground for the plaintiff to remain absent from the Court on the date fixed for hearing. The plaintiff -petitioner carried an appeal before the learned Add!. District Judge, Berhampur, which was registered as Misc. Appeal No. 20 of 1995 (Misc. Appeal No. 103 of 1994 GDC), but the order of the Civil Judge (Junior Division), Berhampur was affirmed and the appeal was dismissed.

(3.) HAVING heard the learned counsel for the parties and having perused the materials on record, it transpires that on 27.4.94, to which date the case was fixed for hearing, an application for adjournment was filed but the petition was rejected and the suit was dismissed for default. The order sheet dated 27.4.94 of the Civil Judge (Junior Division). Berhampur indicates that the learned counsel filed the petition for adjournment on the ground that the plaintiff has not been able to come for some unavoidable reasons. The petition having been filed by the learned lawyer, the plaintiff haying not come to Court without intimation, no specific ground could have been taken while praying for adjournment and on that score, no exception could have been taken by the Court in the facts and circumstances of the case. However, in the petition under Order 9, Rule 9, C.P.C. the plea of illness was taken inasmuch as in the evidence of the plaintiff, he has stated that due to viral fever he was not in a position to undertake the journey and attend the Court on the date fixed. In the contrary, objection filed by the defendanls -opp. parties disputing the illness and it was pleaded that the plaintiff having attended the school in his work, there was no reason not to attend the Court. It may be relevant that the village of the plaintiff -petitioner is at a distance of about 40 Kms. as contended by the learned counsel for the petitioner and not disputed by the learned counsel for the opposite parties. It is also admitted that the plaintiff has in fact attended the school, which is situated in his own village on the relevant date. The learned courts below while considering the application under Order 9, Rule 9, CPC. ought to have taken note of the fact that the school where the plaintiff -petitioner is serving and attended is situated in the same village and the Court is situated at a distance of about 40 Kms. away from his village. The illness as deposed to and revealed from the evidence of the petitioner is that he was suffering from viral fever and was cured by taking some medicines, without formal treatment from the doctor and in those circumstances, if the plaintiff -petitioner attended the school, no serious exception ought to have been taken, plaintiff having not been able to undertake the journey and attending the Court at a distant place.