LALTA PRASAD Vs. RAM KARAN

JUDGEMENT

(1.) This is an appeal from an order refusing to re-instate a suit dismissed for default of appearance by the plaintiffs under Order IX, Rule 8. The suit is one in respect to a trust by certain trustees against a co-trustee who is charged with the management of the property.

(2.) The lower court rejected the application for rehearing on the ground that sufficient cause had not been shown. The facts briefly are as follows. The suit was partly heard. One of the plaintiffs had been examined and the suit adjourned to enable the other plaintiff to appear for examination. Two of the leading pleaders were appearing for them. One of these gentlemen and also the pleader for the opposite party are members of the Municipal Board of Cawnpore and on the date fixed were late in attending court owing to a meeting of the Board. The other pleader for the plaintiff represented this to the Court early in the day and the Judge consented to taking the case at 12 o clock. The pleader, however, misunderstood what the Judge said and thought that the case would be taken up at 2 o clock. He informed the plaintiffs accordingly, and the same information was conveyed to their other pleader on his arrival. As a result, when the case was called at 12 o clock, both pleaders were engaged in other eases in other courts. The case was called repeatedly and the court waited for 20 minutes. One of the plaintiffs was waiting in his pleader s room. It is inconceivable that he did not hear the case called. Finally at 12-20 p.m., when no one appeared, the Court dismissed the suit under Order IX, Rule 8.

(3.) On their application for restoration the plaintiffs pleaded that they had not heard the calling of the case and placed before the court the misunderstanding into which their pleader had fallen. As a matter of fact it is admitted that the calling was heard, but too late, to enable the plaintiffs to appear in person. They arrived just after the case had been dismissed.