DHRUBA CHARAN SARANGI Vs. TARAMANI SARANGI

JUDGEMENT

(1.) The petitioner filed T.S. No. 144 of 1993 for specific performance of contract. The defendants after appearance before filing their written statement, filed an application for a direction to the plaintiff to file the documents relied upon by the plaintiff for inspection. The said petition was allowed and the plaintiff was directed to file the suit documents'by 29.4.1994.but the plaintiff did not file the documents. A memo was filed by the defendants and the case was posted to 6.7.1994 to file the documents. On 6.7.1994 no steps were taken on. behalf of the plaintiff and the following order was passed :

(2.) The trial court held that sufficient opportunity had been given to the plaintiff for filing the documents and the petition filed by defendant No. 2 on 23/3.1994 to cause production of the documents should be taken to be a petition under Order 11, Rule 19. CPC. The trial court further held :

(3.) The order of dismissal dated 6.7.1994 cannot be said to be one under Order 9, Rule 8, CPC, simply for the reason that the suit had been fixed for hearing and, as such, the provisions of Order 9, Rule 8, CPC, were not applicable. It is of course true that the trial court had' taken note of the fact that the plaintiff was absent on ."call and the suit was dismissed for non-appearance of the plaintiff. However, as the suit had not been fixed for hearing, ex facie, Order 9, Rule 8, CPC, had no application and the subsequent application for restoration under Order 9, Rule 9 was not maintainable. Even then, the trial court could have treated the application to be one under Section 151, CPC, in which case an appeal not being maintainable, the appellate court instead of dismissing the appeal on the ground of maintainability, could have treated the appeal to be a revision in view of the Orissa amendment, the District Judge being also the revisional authority, there was no difficulty for the Dis-. trict Judge to dispose of the appeal as a civil revision.