SISHWANATH SAH Vs. SUKHLI DEVI

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) Petitioners who were plaintiffs in Title Suit No. 65 of 1983 aggrieved by orders dated 24.8.1990 and 6.4.2000 by which their Miscellaneous Case No. 36 of 1985 and Miscellaneous Appeal No. 107 of 1990 for restoration of the aforesaid title suit were rejected. The aforesaid title suit no. 65 of 1988 was filed by the petitioners against the ex parte judgment and decree dated 5.10.1982, passed in Title suit no. 51 of 1981. The said Title Suit No. 65 of 1983 was dismissed for default on 21.11.1985 as after filing of appearance no one appeared on behalf of either of the parties. The plaintiffs filed Miscellaneous Case No. 36 of 1985 for restoration of the title suit but it was also dismissed for default on 4.10.1986 but later in Miscellaneous Case No. 39 of 1986 the earlier misc. case was restored. However, on 24.8.1990 the learned Subordinate judge-II, Bhojpur dismissed Misc. Case No. 36 of 1985 and against that order petitioners filed Miscellaneous Appeal No. 107 of 1990 which was dismissed by the learned Additional District Judge-I, Bhojpur at Ara by the impugned order dated 6.4.2000.

(3.) Learned counsel for the petitioner submits that it is apparent from the records of the title suit that petitioner no. 2 was taking proper care of the suit but due to absence on one date i.e. 21.11.1985 the suit was dismissed although on the previous five occasions he was present in court. He further submits that earlier court was transferred due to which there was some confusion and further he had fallen ill on that date and hence he could not appear. He further contended that he had throughout taken proper care of the suit which was dismissed for default for none of his intentional fault, hence the court below should have taken the lenient view and should have restored the suit for deciding it on merit in accordance with law.