DEENA NATH RAI Vs. HARIDWAR RAI

JUDGEMENT

(1.) The petitioners assail validity of the order dated 12th August, 1988 passed by the Additional Munsif, Buxar, in Misc. Case No, 18 of 1986 rejecting their application filed to review the order dated 28-7-86 by which their prayer to restore back Misc. Case No. 5 of 1985 filed by them for restoration of their title Suit No. 16 of 1979 which was dismissed for default on 30th August, 1985, was rejected.

(2.) The relevant facts are in narrow compass. 30-8-1985 was the date fixed for filing the written statement of the defendants-opposite parties. As the Plaintiff No. 1-Petitioner No, 1 fell ill and other plaintiffs do not live in the village rather mostly reside out station in connection with their livelihood, pairvi could not be done on 30-8-1985. The suit, however, was dismissed for non-prosecution. On 21-9-1985 the petitioners filed an application which was registered as Misc. Case No. 5 of 1985 for restoration of the suit, The petitioners filed a medical certificate (Marked Ext. I) which described the ailment as acute bacillary dysentry. This certificate was proved by AW 2 a formal witness. The petitioner No. 1 examined himself as AW 1 and stated of his, illness in examination in chief. In his cross-examination he also talked of pain in his abdoment. Misc. Case No. 5 of 1985 was dismissed by order dated 28th July, 1986, a photo copy of certified copy of which, has been appended as Annexure-1 stating following reason (i) the petitioners had left pairvies since four dates before 30-8-85 and in this backdrop the plea of not attending the court does not seem Justifiable, (ii) The statement of the petitioners is not supported by the certificate, (iii) Even though the suit was dismissed on 30-8-1985 the application was filed on 7-8-1985 whereas the vakalatnama and affidavit bear 21-9-1985. From the Court's seal the date is not clear. The petitioners sought review of the aforementioned order on two grounds : (i) since the suit itself was not posted for hearing it could not be dismissed under Order IX, Rule 3 of the Code of Civil Procedure, (ii) the reason given for disbelieving the case of the illness of the petitioner No. 1 is not correct as the illness was supported by the certificate. The impugned order mentions following reasons for refusing to grant review: (i) the petition in question though mentions 21-9-1985 as its date, the seal of the Court on it, is not clear. From the 'Patrawali' it appears that it was not filed on 7-10-1985. Thus, it was filed beyond 30 days and barred by limitation, (ii) there appears contradiction in regard to the illness as stated by the witness and what has been stated in the cartificate of the doctor.

(3.) In the last sentence of paragraph-23 of this civil revision application the petitioners have stated as follows: