SHANTILAL Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Shantilal against the order of the District Judge, Bhilwara, dismissing the application of Shantilal under Order IX, Rule 9, C. P. C. for restoration of a suit alleged to have been dismissed for default.

(2.) THE facts, which led the appellant to apply under Order IX, Rule 9 may be briefly narrated. The appellant Shantilal had filed a suit in the court of the District judge, Bhilwara, against the State of Rajasthan, and the Customs and Excise commissioner. Issues were framed and thereafter dates were fixed for the plaintiff's evidence. Three times the suit was adjourned on the plaintiff's application. On one of these occasions, the plaintiff's statement was recorded. Thereafter, again, on the plaintiff's application, the suit was adjourned to the 18th of July, 1953, for further evidence of the plaintiff on payment of costs. On this date, the plaintiff did not appear. Consequently the court proceeded under Order XVII, Rule 3 C. P. C. as the plaintiff had failed to produce his evidence fa spite of the time granted to him, and after considering all the materials on the record, including the statement of the plaintiff, dismissed the suit.

(3.) THEREAFTER, the plaintiff presented an application to the court under Order IX, rule 9 for restoration treating the decree of the 16 of July 1953, as a dismissal for default. This application has been dismissed by the District Judge on the ground that the order of the 16th of July was a decree on the merits under Order XVII, rule 3 against which only an appeal lay, and that it was not a dismissal for default against which an application under Order IX, Rule 9 could lie. Aggrieved by this order the plaintiff-appellant has filed this appeal before us.