MANGILAL Vs. JAINARAIN

JUDGEMENT

(1.) THIS is a revision against an Order of the Additional Sub-Judge, Jodhpur, dated the 16th January, 1950.

(2.) THE non-petitioner, who is a tenant, filed a suit against the petitioners, who are landlords, for an injunction restraining them from discontinuing the electric current to the shop leased to the non-petitioner, and for damages for cutting the electric current earlier. THE defendants denied the allegations in the plaint, and after framing of the issues, the case was fixed for the plaintiff's evidence. THE plaintiff failed to produce any evidence on the date of hearing, and on his request an adjournment was granted on payment of costs. On the next date of hearing, i. e. the 12th of September, 1945, the plaintiff and his counsel were absent. THE Court closed his evidence, and the defendants, when called upon to product their evidence, did not consider is necessary to dp, so, and the case was fixed for arguments on the 6th of October, 1949. THE plaintiff filed an application for setting aside the order closing his evidence, but it was rejec-ted, and after arguments had been heard, the suit was dismissed on merits on the 25th of October, 1949. THE plaintiff filed an appeal, and the learned Civil Judge was of opinion that although the plaintiff and his lawyers were guilty of gross negligence, yet, as the plaintiff was absent on the date of hearing, the suit should have been dismissed under the provisions of Order XVII, Rule 2, and should not have been decided' on merits, as done by the lower Court. He accepted the appeal, considered the order of the lower Court to be one dismissing the suit for defaults, and directed it to be restored on payment of Rs. 25/- as costs to the defendants. THE defendants have come in revision.