UMRAOMAL Vs. PANCHI DEVI

JUDGEMENT

(1.) I have heard the learned counsel for the parties. The order dated July 11, 1980 of the learned Additional District and Sessions Judge No. 1, Jaipur City cannot be sustained.

(2.) ONE Gopal Lal since dead and now represented by the non-petitioners Nos. 1 to 9 had filed a suit for mesne profit amounting to Rs. 14,400/- against Mrs. Phool Chand and Rajmal on May 30, 1967. Gopal Lal plaintiff died during the pendency of the suit and his heirs were brought on record as plaintiffs and performa defendants. In the case 17th and 18th Feb. '77 were fixed for recording the evidence of the plaintiffs and their witnesses. On that date neither the plaintiffs nor their witnesses were present and the case was adjourned to February 18, 1977, the next date already fixed. On that date also neither the plaintiffs nor their witnesses were present and awaiting till 12. 30 p. m. the Court dismissed the suit in default.

(3.) IT is not the end of the matter, a bare reading of Order 9 Rule 9 C. P. C. will show that the Court has no jurisdiction to allow the application under Order 9 Rule 9 C. P. C. and to set aside the order dismissing the suit in default if the defendant/defendants satisfied that there was sufficient cause for non-appearance when the suit was called for hearing. Therefore, the Court only gets jurisdiction on its satisfaction that there was sufficient cause for the non appearance of the defendants when the suit was called for hearing. A look at the impugned order will show that all that has been mentioned therein is that if the application is not allowed the applicant i. e. the plaintiff shall suffer irreparable loss. Neither the Court adverted to the question as to whether the plaintiff has satisfied the Court that he was prevented from sufficient cause from appearing the court on February 18, 1977 nor the Court has recorded such a finding or conclusion. Thus, even on this score, it can be said that the court has in the exercise of jurisdiction acted illegally and material irregularity.