RAJENDRA KUMAR Vs. MANGLA DEVI

JUDGEMENT

(1.) The present appeal has been preferred against the impugned order dtd. 17/9/2011 passed by Additional District Judge, Sojat, District Pali in Civil Misc. Case No.16/2010 whereby, the application under Order 9 Rule 9 read with Sec. 151, CPC as preferred on behalf of the plaintiff, was dismissed.

(2.) Brief facts of the case are that a suit for cancellation of gift deed as well as permanent injunction was filed by the plaintiff in the year 2008. In the said suit, after the issues been framed, time was granted by the learned Trial Court for plaintiff's evidence for the first time on 21/11/2009. Since then, almost 6-7 opportunities were granted including the last opportunity at a cost of Rs.500.00 however, the plaintiff's evidence could not be led and on 7/7/2010, neither any witness nor the counsel on behalf of the plaintiff appeared and hence, the learned Trial Court proceeded on to dismiss the suit for non-prosecution.

(3.) For setting aside the said order of 7/7/2010, an application under Order 9 Rule 9 read with Sec. 151, CPC was preferred on 18/9/2010. The said application was rejected by the learned Trial Court vide order impugned dtd. 17/9/2011 on the ground that no sufficient cause for non-appearance on 7/7/2010 had been furnished. The learned Trial Court further observed that the application was not supported by the affidavit of the counsel qua whom the ground had been raised that inadvertently the date as fixed was not noted by him in his daily diary. The learned Trial Court further observed that sufficient opportunities had been granted to the plaintiff to lead his evidence but despite the same, on 7/7/2010 neither any witness nor the counsel appeared.