SURAIN SINGH Vs. KHIWAN SINGH

JUDGEMENT

(1.) Suit filed by the plaintiff-petitioner (hereinafter referred to as the 'petitioner') was ordered to be dismissed for non prosecution on 10.8.1977 as the counsel for the petitioner failed to appear on the said date. It was called for hearing before lunch but as the counsel for the petitioner was not present, the same was ordered to be taken up after lunch. The case was again called for at 2.30 p.m. but again counsel for the petitioner was not present and the case was again adjourned to be taken up on the later part of the day. Case was again taken up at 4.15 p.m. on the same date but neither the petitioner nor his counsel was present and the case was ordered to be dismissed for non prosecution. Counsel for the defendant-respondents (hereinafter referred to as the 'respondents') was present in Court at 4.15 p.m. and the said case was dismissed for non prosecution in his presence under Order 9 Rule 8 C.P.C.

(2.) Petitioner filed an application under Order 9 Rule 9 Code of Civil Procedure on 5.9.1977 for setting aside the order of dismissal for non prosecution. Application was dismissed by the trial Court on the ground that case had been called thrice but neither the petitioner nor his counsel appeared; that the application for restoration though filed within the period of limitation but the same could have been filed immediately after it had come to the notice of the petitioner that his suit had been dismissed for non prosecution which shows that action of the petitioners was not bona fide. Another reason given by the trial Court is that on the earlier three dates petitioner failed to produce his evidence and, therefore, the application filed by him was not bona fide and the petitioner was trying to delay the proceedings in the suit.

(3.) Against the order of trial Court, an appeal was preferred which was also dismissed by the first appellate Court on 18.12.1982. Aggrieved against the non restoration of the suit, petitioner has filed the present revision petition which was admitted.