HARBANS LAL Vs. GURMIT SINGH

JUDGEMENT

(1.) THE present petition is directed against the order of the Senior Sub Judge Hoshiarpur dated 6th April, 1992, in which the application filed by the petitioner under Order 9 Rule 4, Code of Civil Procedure, for setting aside the dismissal in default of the suit in question has been declined.

(2.) THE case of the petitioner who is one of the plaintiffs in the suit was that on the date on which the order of dismissal in default was made, i. e. 23rd October, 1989, he had gone to Shimla in the course of his avocation as he was a taxi driver whereas the other plaintiff Narinder Singh was a resident of Jabalpur and it was the petitioner alone who was pursuing the case. In the order dated 23rd October, 1989, which was passed Under Order 9 Rule 3, Code of Civil Procedure, as none of the parties nor their counsel was present, it has been noted by the Subordinate Judge that the case had been called thrice but nobody had appeared on behalf of either of the parties. As already mentioned, the petitioner thereby filed an application under Order 9 Rule 4. CPC, on which the following issues were framed :- 1) Whether I here are sufficient grounds to order restoration of the suit dismissed in default on 23. 10. 1989? OPA 2) Relief. After recording evidence, the learned Sub Judge found that though the application Under Order 9 Rule 4, Code of Civil Procedure, had been made within time yet sufficient cause for setting aside the dismissal in default had not been made out. The primary reason for this finding was that no independent witness had been examined by the petitioner to show that he was held up at Shimla on account of the fact that his taxi had broken down. On the other hand, the Court found that the defendant-respondents had produced a number of witnesses to show that on 23rd October, 1989, the petitioner was in the village and that the story of going to Shimla was a concocted one. Aggrieved by the order of the Sub Judge, the present revision has been filed.

(3.) MR. Jaiswal, learned counsel for the respondents, has raised a preliminary point that the order of the Court impugned in this petition was appealable and, therefore, the present revision was not competent. In answer to this argument, Mr. Cheema, learned counsel for the petitioner, has drawn my attention to the fact that an order recorded on an application Under Order 9 Rule 4 was not appealable one as envisaged under Order 43 Rule 1, Code of Civil Procedure. I have gone through the orders quoted and find that an order! and Under Order 9 Rule 4 is not appealable as it does not find mention in Order 43 Rule 1. In this view of the. matter, the only remedy open to the petitioner was by way of the present revision petition,