RANJIT KUMAR Vs. MOHAN SINGH

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated October, 15, 1984, whereby the plaintiff's suit was dismissed under section 35-B, Civil Procedure Code.

(2.) In the impugned order presence of counsel for the parties is there. An affidavit has been filed by the counsel for the plaintiff in the trial Court that he was not present when the impugned order was passed and his presence has been wrongly shown therein. This statement has not been controverted on behalf of the respondents in this Court. If that is so, then in that situation, the suit could be dismissed in default as nobody was present on behalf of the plaintiff and not under section 35-B as shown by the impugned order. If the suit would have been dismissed in default, the plaintiff was entitled to make an application for its restoration which right he was deprived by passing the impugned order. Since no body was present on behalf of the plaintiff on the date fixed i.e. October 15, 1984, the plaintiff is liable to pay the costs for his negligent conduct.

(3.) Consequently, the petition succeeds, the impugned order is set aside. The trial Court will now proceed with the suit in accordance with law. The plaintiff will be entitled to lead his entire evidence at his own responsibility on payment of Rs. 250 as costs. For this purpose, he will be given one opportunity only. The parties have been directed to appear in the trial Court on September 5, 1985. On that date the costs will be paid and then the date for the plaintiff's evidence will be fixed by the trial Court and the suit will be decided in accordance with law. Order accordingly.