RAM NIWAS Vs. CHHOTI DEVI

JUDGEMENT

(1.) THE appellant has challenged the order dated 10. 5. 2002 passed by the learned Additional District Judge No. 1, Sikar whereby the learned Judge has dismissed the application under Order 9 Rule 9 of the Civil Procedure Code (henceforth, to be referred to as `the Code', for short ).

(2.) THE brief facts of the case are that the appellant, who is plaintiff in the suit, filed a suit against the defendant- respondents for declaration, partition and permanent injunction. According to the plaint, the appellant has been lawfully adopted by the defendant No. 1 on Jeth Sudi 11 Samvat 2042 as per the rites of the Jat Community. According to the appellant, in this regard, an adoption deed was registered. After the said adoption, the appellant left his natural parents and started living with the defendant No 1. THE defendant No. 1 looked after his education and even got him married. THE appellant further claimed that the residential property and the agricultural land belonging to the defendant No. 1 are situated in Village Bidoli. But some persons, who are working against his interest, are trying to convince the defendant No. 1 to alienate the said property and deprive the appellant from his rightful shares. Hence, the appellant filed the civil suit. After service on the respondent- defendants the case was fixed on 19. 9. 2000 for filing of the written statement. But on 19. 9. 2000, the counsel for the defendants assured the learned Court that the parties would like to compromise and sought adjournment on this ground. THErefore, the learned Court adjourned the case till 26. 9. 2000 and directed that the copy of the compromise be placed on record. Despite the directions of the learned Court, no compromise was placed on record, although a compromise was written and was kept with the counsel for the defendants. On 13. 3. 2001 the defendants counsel pleaded no instructions. However, as a compromise had been written, the appellant was under the impression that the same must have been filed in the Court. In the absence of the compromise, in the absence of the defendants' counsel, the learned Court had fixed 31. 1. 2001, 20. 4. 2001, and 28. 4. 2001 as the date for the plaintiff's evidence. Since the defendants had assured the appellant that the compromise would be filed in the learned Court, he did not contact his counsel as he was under a bona fide impression that the copy of the written compromise must have been filed in the Court. However, vide order dated 28. 4. 2001, the learned Court dismissed the suit on the ground of non-prosecution. Four months later, on 21. 8. 2001 when the appellant contacted his counsel, his counsel informed him that the suit has been dismissed vide order dated 28. 4. 2001. Immediately on 31. 8. 2001, the appellant submitted an application under Order 9 Rule 9 CPC. However, after hearing both the parties, vide order dated 10. 5. 2002, the said application was dismissed by the learned Court below. Hence, this appeal before this Court.

(3.) WITH these observations, this appeal is allowed. .