WATTU RAM Vs. JAIMAL AND ANR.

JUDGEMENT

(1.) This revision petition is directed against order dated 7.8.1981 passed by the learned Additional District Judge, Kurukshetra dismissing the appeal of the plaintiff -petitioner (for brevity, the plaintiff) for restoration of his suit which was dismissed in default on 27.8.1979 by Sub Judge, 1st Class, Kaithal. The Sub Judge had earlier dismissed the application of the plaintiff for restoration of his suit on 19.9.1980.

(2.) The facts necessary to solve the controversy arising in this revision are that the plaintiff had filed a suit for grant of declaration and permanent injunction against the defendant -respondents (for brevity, the defendant) in respect of agricultural land measuring 30 bighas and 13 biswas situated in village Taranwali, tehsil Guhla, District Kurukshetra which was jointly purchased by them in open auction. The parties had adduced almost all their evidence and the case had come to the stage of rebuttal and arguments on 27.8.1979. However, the suit of the plaintiff was dismissed in default because his counsel was busy in some other Court. On 2S.8.1979 i.e. the very next day, the plaintiff moved an application for restoration of the suit under Order 9, Rule 10 of the Code of Civil Procedure and prayed for restoration of the suit to its original number. The trial court issued notice of the application which was opposed by the defendants resulting into the framing of two issues which are as under: -

(3.) Both the issues were taken up together and it was concluded that on 27.8.1979, the case was called twice but on both the occasions neither the plaintiff nor his counsel had appeared in the Court. However, Watto Ram plaintiff has stated that on both the occasions, he was present and had gone to fetch his counsel. The learned trial Court dismissed the application of the plaintiff vide its order dated 19.9.1980.