SHRIKANT CHOUDHARY Vs. HAREKANT JHA

JUDGEMENT

(1.) The plaintiff has filed this application in revision against the order dated 30th March, 1954, of the 2nd Munsif of Darbhanga, exercising Small Cause Court powers refusing to restore the plaintiff's suit, which had been dismissed for default on 15th January, 1954.

(2.) The plaintiff brought a Small Cause Court suit for recovery of a sum of Rs. 136/- on the basis of a hand-note dated 30th November, 1950, alleged to have been executed by the defendant in favour of the plaintiff. , The suit was instituted on 30th November, 1953. Along with the plaint the plaintiff filed the process fee, written processes and a copy of the plaint, but by mistake the correct forms were not filed. Instead of filing the forms of summons for the final disposal of the suit as required by the proviso to Rule 5 of Order 5 of the Code of Civil Procedure, the plaintiff filed the forms of summons for the settlement of issues. On 4th December, 1938, the plaint was admitted, and 14th December, 1953, was fixed for filing the correct forms. No step was taken on 14th December, 1953, and, therefore, the plaintiff was given more time, till 22nd December, 1953. for compliance with the above order. This order was communicated to the lawyer of the plaintiff on 15th December, 1953. In spite of this fact, the correct forms of summons were not filed, and, therefore, on 22nd December, 1953, the Court below adjourned the suit to 6th January, 1954 for taking steps. The Court further directed that the plaintiff's pleader should be informed of this order. It appears from the order sheet of the Court below that the pleader was not informed of the order passed on 22nd December, 1953, and in spite of being, informed of the earlier order, he did not take step even on 6th January, 1954. The suit was, therefore, adjourned to 15th January 1954, for disposal, and the Court again directed that the pleader of the plaintiff should be informed. The pleader of the plaintiff was not available, as appears from a note on the order sheet and therefore, he could not be informed. No step, however, was taken even on 15th January, 1954, and, therefore, the suit was dismissed for default. The plaintiff, thereafter, on 18th February, 1954, made an application under Order 9, Rule 4, Code of Civil Procedure, for setting aside the order of dismissal for default passed on 15th January, 1954. on certain grounds. This application has been rejected by the Court below on the ground that the plaintiff has been negligent from the very beginning, as appears from the facts stated above, and, therefore, he was not entitled to the indulgence of the Court. The Court below did not discuss the evidence adduced in the case in support of the application for restoration. The learned Munsiff only said that the evidence adduced did not convince him, and he was not satisfied with the cause shown. He, therefore, rejected the application of the plaintiff for restoration of the suit. The plaintiff has moved this Court in revision against this order.

(3.) This application is not opposed, as there" is no appearance on behalf of the opposite party.