RADHA KISHAN Vs. GAINDI

JUDGEMENT

(1.) THIS is a revision petition on behalf of Radha Kishen plaintiff who had filed a suit against Mst. Gaindi and Madanlal opposite party in the court of Munsif West, Jaipur City, on the 24th of April, 1948, for declaration that the defendant No. 2 Madanlal was not the adopted son of Shiv Shankar, husband of Mst. Gaindi defendant No. 1. Several issues were framed in the case and the plaintiff closed his evi-dcence on the 12th of September, 1950, on the issues the burden of proof of which lay on him, and 7th and 8th of December, 1950, were fixed for recording evidence on behalf of the defendants. The case was thereafter adjourned several times. One of the reasons for adjournment was that the parties wanted time for compromise. Ultimately, on the 30th of March, 1951 the advocates of both the parties stated that the parties have not come to a compromise, and prayed that the case be adjourned and the court adjourned the case for 30th of May, 1951. On the 18th of May 1951, an application was filed on behalf of Mt. Gaindi, defendant, praying for adjournment of the case from the 30th of May, 1951, to any date in the month of July, 1951. Notice of this application was issued to the plaintiff applicant fixing the 30th of May, 1951, as the date of hearing of the application. On the 30th of May, 195 (, Mr. Ram Chander Kasliwal advocate was present on behalf of the defendant. None was present on behalf of the plaintiff and the case was transferred to the Additional Munsif West, Jaipur City. The record of the case was received by the additional Munsif, West on that very day and when the case was called for hearing in that court, the advocate for the defendant was present but the plaintiff was absent and 1st of August, 1951, appears to have been fixed for further proceedings but this order was scored out later on that very day and it was ordered that as the plaintiff or his advocate was not present the suit be dismissed in default of the plaintiff. On the 16th of August, 1951, Sri Ganesh Lal Advocate on behalf of the plaintiff made an application to the Munsif West that the 30th May, 1951, was fixed in the case but the defendant had applied for adjournment on that date, and that as no notice of that application was served on the applicant he did not attend the court on that date and on inquiry from the clerk of the advocate of the defendants, he was informed that the 1st of August, 1951, had been fixed in the case, but the case was not called on the 1st of August, 1951. The plaintiff prayed that he might be informed as to what had happened in his case. On the 12th of September, 1951, Shri Ganesh Lal advocate was informed by the court of Munsif West that the plaintiffs suit had been dismissed on the 30th of May, 1951, by the Additional Munsif.

(2.) THEREUPON on the 15th of September, 1951 the plaintiff applied for the restoration of his case setting forth all the above facts, and also that on the 31st May, 1951, Shri Lalchand, clerk of the advocate of the defendants had informed him that 1st of August, 1951, had been fixed in the case. This application was rejected by the Munsif West on the 26th of November, 1951 on the ground that sec. 151 C.P.C. was not applicable to the facts of the case.