RENU TALUKDAR Vs. KONAKLATA KALITA

JUDGEMENT

(1.) Head Mr. S. Sharma, learned counsel for the petitioner. Also-heard Mr. P.S. Deka, learned counsel Opp. Parties/plaintiffs.

(2.) The order under challenge in the instant Civil Revision petition is one setting aside the order dated 14-10-1993 dismissing the Title suit No. 112/1992 for default and consequently restoring it to file. The suit was brought by the Opp. Parties against the petitioner which was dismissed for default on 14.10.1993 as the Opp. Parties / plaintiffs failed to take steps. An application was thereafter filed under Order 9 Rule 9 of the CPC for setting aside the dismissal. The ground shown for default on 14.10.1993 was that respondent plaintiff was suffering from old age ailments and O.P. No. 2 being her daughter was attending to her. They contended that the Puja vacation ensued from the next day and they could come to learn about the dismissal only on 15.11.1993. According to them, the application was delayed by one day for which a prayer for condonation of delay was also made.

(3.) In her written objection, the petitioner inter alia took the stand that the ground of illness taken in the application was incorrect and that the Opp. Parties/ plaintiffs were negligent in taking steps and therefore their prayer for restoration of the suit ought not to be entertained. The Opposite Parties/ plaintiffs examined 3 witnesses in support of their case. The petitioner defendant also examined 2 witnesses including herself. The learned court below on a consideration of the pleadings of the parties, as well as the evidence on record held that the contention of the plaintiff/ Opposite Parties that the default on 14.10.1993 was not intentional and that the plaintiff/Opp. Party No. 1 was ill was acceptable. It, therefore, after condoning the delay, by the impugned order, restored the suit to file.