SARDARMAL SERAOGI Vs. JAHARMAL CHIRANJILAL

JUDGEMENT

(1.) On a date fixed for the hearing of a suit which the petitioner had instituted, the petitioner, who was present with his witnesses, intimated to the Court that a pleader whom he had engaged for conducting the suit on his behalf was actually engaged in another Court and prayed for a short adjournment. The Munsif passed over the case and asked the petitioner to engage another pleader. He took the case up again about an hour after, as appears on the order sheet, but the pleader had not yet arrived. The petitioner had in the meantime sent his son to call his pleader who was in another Court. It does not appear what the distance between the two Courts was. The Munsif refused to wait any further, and called upon the petitioner to proceed with the case. The petitioner informed the Court that he had sent his son to call the pleader whom he had already engaged, and said that it was not possible for him to engage another pleader and that he was unable to examine himself or his witnesses. The Munsif thereupon dismissed the suit with costs. Shortly after, on the same day, the petitioner's pleader appeared and filed a petition for the restoration of the suit. Reliefs were asked for under O.9, R.9, Civil P.C., and Section 151, Civil P.C. The Munsif issued notice to the other side, and on a slate fixed for the purpose, examined the petitioner and dismissed the application holding that in giving certain answers in the course of his deposition he had perjured himself. These answers related to the question whether the petitioner had not been called upon by the Court to go on with the case, the petitioner's answers suggesting that he had not been specifically asked to do so and trying to make cut that ho did not fully understand the proceedings.

(2.) The petitioner preferred an appeal from the order refusing to restore the suit. The Subordinate Judge observed in his order: I may however remark that the lower Court's order operated with great hardship against the plaintiff who was victimized for circumstances beyond his control. I have gone through the plaintiff's deposition but cannot agree with the learned lower Court that he was guilty of deliberate perjury. I have carefully gone through the lower Court's record and find that the plaintiff's allegations were well-founded.

(3.) Having examined in detail all the facts and circumstances of the case and referred to the conduct of the respective parties in the course of this litigation the Subordinate Judge eventually observed: Under such circumstances the learned lower Court should have either waited for some time or adjourned the suit to the next day after awarding some adjournment costs to the opposite party. The order of dismissal, in my opinion, was unjustified and unduly harsh.