JANKI DEVI Vs. PROVINCIAL GOVT OF BIHAR (NOW

JUDGEMENT

(1.) This miscellaneous appeal by the plaintiffs under the provisions of Order XLIII Rule 1(c) of the Code of Civil Procedure is against the order dated 17th March, 1960 passed by the First Additional Subordinate Judge, Monghyr in Miscellaneous Case No. 5/22 of 1957/59 refusing to restore Title Suit No. 7/12 of 1944/57.

(2.) The salient facts necessary to be stated in this case in order to appreciate the point raised in this appeal are the following:

(3.) It will be relevant to state here that the plaintiffs were more than two hundred in number and the defendants were more than eight hundred in number. Out of so many defendants only few of them contested the suit. It appears that they raised the plea of undervaluation of the suit along with other defences. The Presiding Officer of the trial Court by order dated 13th December 1955 (vide Order No. 321) directed the valuation matter to be heard first. Thereafter it appears that a number of orders passed from time to time and ultimately the suit was transferred to the Subordinate Judge-I for disposal. The Subordinate Judge, as the order sheet shows, passed repeated orders for hearing of the suit and the parties were directed to come ready. Orders Nos. 355 dated 20-8-1956, 356 dated 24-9-1956 and 357 dated 28-11-1956 support the aforesaid position. Thereafter it appears that the suit was again transferred to another Court, namely the Additional subordinate Judge, Monghyr (vide Order No. 362 dated 12-2-1957). The said transferee Court by the next order dated 13th February 1957 registered the suit and directed the suit to be put up for hearing on the date fixed. It appears from the order-sheet that before the transferee Court, the plaintiffs were negligent on several dates, inasmuch as they did not appear to take steps for service of summons under Order V, Rule 20 of the Code of Civil Procedure, as ordered to be taken on the substituted defendants. Accordingly, by Order No. 386 dated 6-6-1957, the suit was dismissed against the newly substituted defendants. It was further directed by that order that the suit would be taken up for hearing on 17th June 1957 and the parties were directed to come ready with all their evidence without fail. On the date fixed (i.e. on 17-6-1957) defendant Nos. 1 and 43 filed haziries separately and on the plaintiffs' request the suit was adjourned to 27-6-1957 for hearing. Again the parties were directed to come ready on that date. Ultimately on 27-6-1957, the suit was called out for hearing. Defendant No. 1 the State of Bihar and defendant No. 503 filed two separate haziries. Defendant's second party filed a petition praying that the valuation matter be decided first as there was already an order to that effect, (vide Order No. 321 dated 13-12-1955). But as the plaintiffs did not take any step when the suit was called out for hearing and nobody appeared on their behalf on repeated calls, the suit was dismissed for default in presence of some of the defendants.