SONAULLAH Vs. SULTAN JAN

JUDGEMENT

(1.) THIS revision brings to light certain unique features.

(2.) THE petitioner instituted a suit for partition on setting aside a certain gift deed in favour of one of the defendants. One of the defendants was a minor and a court guardian was appointed for him. The trial Court directed deposit of a specified amount as the guardians fee. It appears that there was a talk of compromise between the parties for a considerable time. This seems to have made the plaintiff a little less prompt than he ought to have been. The result was that he did not deposit the guardians fee within the time allowed to him by the court. Eventually therefore when the suit came up for hearing on 15th October 1959 it was pointed out to the court that the plaintiff had not deposited the guardians fee. The plaintiff and all the defendants except the minor defendant were present before the court on that day. The court however dismissed the suit on the ground that the guardians fee was not deposited by the plaintiff within the time allowed by it.

(3.) WHEN the restoration application thus went back to the trial court, the learned counsel for the defendants appears to have taken a different stand before it. He argued that the dismissal of the suit was under R. 3 O. 17 of the Civil P. C. and as such no application for restoration could possibly lie. At that time the court was presided over by another judge. He agreed that the dismissal for default must have been under R. 3 of O. 17 and on that ground dismissed the restoration application. The aggrieved plaintiff has now come up to this court in revision against the order of the court below dismissing his application to restore the suit.