HANUMAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS revision petition his been filed by the plaintiff Hanuman Singh for setting aside the orders dated 27th May, 1977 and 1st September, 1977 passed by the Additional District Judge No. 2,Jodhpur in civil suit No. 42/74. By order dated 27th May, 1977 the Additional District Judge dismissed the said suit for default and by order dated 1st September, 1977 he dismissed the application filed by the petitioner Under Section 151 CPC for restoration of the said suit.

(2.) THE suit referred to above was filed by the petitioner against the respondents on March 27, 1974. In the said suit written statement was filed on 16th August, 1975 and issues were framed on 20th September, 1976. On that date i.e. 20th September, 1976 the suit was adjourned to November 4, 1976 for recording the evidence of the plaintiff -petitioner. On November 4, 1976 the suit was adjourned to January 8, 1977 on account of inability of the counsel for the defendant -respondent to appear in the Court. As January 8, 1977 happened to be a holiday, by order dated 10th January, 1977, the suit was adjourned to 10th February, 1977 for recording the evidence of the petitioner and on 10th February, 1977, at the request of the counsel for the petitioner, the suit was adjourned to 16th April, 1977. Before 16th April, 1977 the counsel for the petitioner had given a notice to the counsel for the defendant -respondents regarding production of certain original documents and on 16th April, 1977 an application was moved on behalf of the petitioner for leave to adduce secondary evidence in respect of the aforesaid documents which were in possession of the defendant -respondents. By order dated 10th April, 1977 it was directed that the case would come up on 29th April, 1977 for production of documents and for reply and arguments on the application liled by the petitioner. On 29th April, 1977 the matter could not be taken up on account of strike and it was adjourned to 27th May, 1977 for production of documents and for arguments on the application. On 27th May, 1977 nobody appeared oh behalf of both the parties and the suit was dismissed for default. Aggrieved by the aforesaid order the petitioner on 11th July, 1977 filed a petition under Section 151 CPC for restoration of the suit. The Additional District Judge, by his order dated 1st September, 1977 dismissed the said application on the ground that the order dated 27th May, 1977 dismissing the suit for default was passed in exercise of the power under Order XVII Rule 2 read with Order IX C.P.C. and that the only remedy open to the petitioner was to move a petition under Order IX Rule 9 and that petition was not maintainable under Section 151 CPC. Aggrieved by the aforesaid orders the petitioner has moved the present revision petition.

(3.) SHRI A.K. Mathur, the learned Counsel for the respondents, has, on the other hand, submitted that the order dated 27th May, 1977 passed by the Additional District Judge dismissing the suit for default was passed under Order XVII Rule 2 CPC read with Order IX CPC and that the only remedy open to the petitioner was to move a petition for setting aside the said order dismissing the suit for dt fault under Order IX Rule 9 CPC and a petition for restoration of the suit was not maintainable under Section 151 CPC. In support of his argument aforesaid the learned Counsel for the respondents has submitted that the provisions of Order XVII Rule 2 are applicable in every case in which issues have been framed and the suit is fixed for evidence and is thereafter adjourned for some other date The submission of the learned Counsel for the respondents is that 27th May, 1977 was the date to which the hearing of the suit had been adjourned and therefore, the Additional District Judge was competent to dismiss the suit under the provisions of Rule 2 of Order XVII CPC read with Order IX Rule 8 CPC.