MITHAI LAL SAHANI Vs. KAPILDEO BARHAI

JUDGEMENT

(1.) This appeal was filed originally by the plaintiff against an order dismissing his application under Order IX, Rule 9 of the Code of Civil Procedure filed for restoration of his suit bearing Title Suit No. 534 of 1974. The plaintiff died during the pendency of this appeal and his heirs were substituted.

(2.) The relevant facts are short and simple. Hearing of the Miscellaneous case (Order IX Rule 9 of the Code of Civil Procedure application) commenced on 25th of May, 1979. The plaintiif -applicant examined one Purushottam Prasad as A. W. 1. The opposite parties -Respondents herein -put in an application to defer the cross -examination of the aforementioned Purushottam Prasad for the next date on the ground that his lawyer busy in some other court. The plaintiff -applicant also put in an application for grant of time to bring further witnesses. It appears from the order dated 25.5.1979 that the prayer was allowed and the case was adjourned to 9th June, 1979 for further evidence. On 9th June, 1979, on behalf of the plaintiff -applicant time was prayed for, on the ground that due to iileaess he has not come, after passing an order that at 10.45 a.m. the applicant must appear, which was allowed subject to payment of cost fixing 16th June, 1979. The court below also directed the parties to come ready on that day. On 16th June, 1979 yet another application was filed on behalf of the plaintiff -applicant on the ground that he is an extremely old man and that his condition is serious and thus he could not come to court nor could bring any witness and thus the case by adjourned. No rejoinder was filed by the respondents herein disputing the correctness of the facts though a hazri was filed on their behalf. The court below rejected the prayer for adjournment on the ground that the same is based on frivulous ground and directed the parties to come ready for hearing at once later by 9 a.m.. No one appeared on behalf of the applicant despite repeated calls the Miscellaneous case was dismissed for default by the impugned order.

(3.) Mr. Nand Kishore Prasad, learned Counsel for the appellants, appearing in support of the appeal submits as follows: