BIHAR STATE ELECTRICITY BOARD Vs. PAWAN KUMAR KHETAN

JUDGEMENT

(1.) This revision by the plaintiff is directed against the order dated 26-11-1976, passed by the Subordinate Judge, Bhagalpur, dismissing the miscellaneous case No. 13 of 1975, which was filed under Section 151 of the Civil P. C.

(2.) The petitioner filed a suit in the court of the Subordinate Judge, Bhagalpur, which was numbered as money suit No. 70 of 1972 for realisation of Rs. 33,632.91 p. as the dues for supplying of electric energy for industrial purpose to the mill known as Shri Ambika Mill belonging to the defendant situate at Colgong, police station Colgong, district Bhagalpur. It appears that the aforesaid amount has been claimed after adjusting from the total claim a sum of Rs. 2,400/-which was lying in deposit as security deposit. The suit, after it become ready was fixed for hearing for 16-8-1974. As no step was taken on that date and requisites for issue of notice on defendant No. 2 were not filed as previously ordered in spite of opportunities, the suit was dismissed for default. Accordingly on 25-2-1972(?); a petition under Order IX Rule 4. C. P. C. was filed which was registered as miscellaneous case No. 9 of 1979. On perusal of the said petition it appears that the reason for not filing the said application within time has been stated. It has also been stated in the said petition that "the reason assigning for restoration is sufficient reason in the eye of law". It appears that as the reason explaining the delay in filing the said application was given in the said petition a separate application under Section 5 of the Limitation Act was not filed. However, the said miscellaneous case was put up on 1-3-1975. By the said order it was pointed out that the miscellaneous case having been filed beyond 30 days and therefore, the petitioner was directed to show cause by 10-3-1975 when the miscellaneous case was ordered to be put up for admission. On 10-3-1975, though hajri was filed nobody appeared when the case was called out and therefore the said miscellaneous case was also dismissed. The order reads thus:

(3.) Mr. Tarakant Jha, learned counsel appearing in support of this application contended that the court below acted with material irregularity in the exercise of jurisdiction in holding that the miscellaneous case No. 13 of 1975 was not mantainable as the petitioners had the remedy to move higher court. Learned counsel further contended that in spite of the fact that the delay in filing miscellaneous case No. 9 of 1975 was fully explained in the petition itself which was filed under Order IX, Rule 4 C.P.C. the court below was not justified in passing the order dated 1-3-1975 calling upon the petitioner to file show cause by 10-3-1975 explaining the delay beyond 30 days. Learned counsel further contended that when such order was passed calling upon the petitioner to comply with the order passed by that court, which was not passed in presence of the petitioner or its counsel, it was the duty of the court to get the order sheet "seen" by the lawyer concerned. According to the learned counsel the same not having been done the court below was not justified in rejecting miscellaneous case No. 9 of 1975 at the time of admission, on the ground of delay without perusing even the petition which contained all the explanations for the delay and making out sufficient cause for condonation of delay and admission. It was lastly contended by learned counsel that it the suit which was filed with a court-tee of Rs. 2,261.25 p. is not restored the petitioner would suffer an irreparable loss and injury and the interest of justice requires that the suit should be restored.