PREMSHANKAR DAVE Vs. RAMPYARELAL S/O. CHEDILAL

JUDGEMENT

(1.) THE plaintiff-applicant brought a suit in the Court below for possession of certain land against the defendants non-applicants. On 30th June 1941 the lower Court dismissed the suit for plaintiff's default in appearance Under Order 9, Rule 8, Civil P.C. Thereupon the plaintiff made an application Under Order 9, Rule 9 ibid for restoration. This application for restoration was itself dismissed for default of appearance on 27th September 1941. The plaintiff then made an application for setting aside the dismissal of his application for restoration but the lower Court dismissed it by order dated 21st November 1942 against which order the plaintiff has applied in revision Under Section 115, Civil P.C. In this case I find that the lower Court has acted with material irregularity in exercising its jurisdiction.

(2.) THE lower Court had not before it yet the question whether the dismissal of the suit in default on 30th June 1941 should or should not be set aside. Nevertheless, the lower Court has in para. 8 of its order proceeded upon the hypothesis that that default was unpardonable. It may be so found ultimately or it may not be, but in deciding whether there was good cause for default in appearance on 27th September 1941, the lower Court had to judicially consider that question alone putting aside all predilections. In Mt.Rukhmabai v. Ganpatrao A.I.R. 1932 Nag. 177 it was held that a Court must not take into account the merits of a case in considering whether an application for review should have been entertained or not. This was also the principle applied in deciding whether an application for restoration should be granted or not as would appear from Venkatarama Aiyar v.Nataraja Aiyar (13) 24 M.L.J. 235. Then again I find the lower Court has accept ed the evidence of the plaintiff's pleader, Mr. Verma, as quite reliable and authoritative and if so, I fail to see how it could be held that sufficient cause for non-appearance on the material date has not been made out. Mr. Verma is A.W. 1 and he deposes that on that day the District Judge, before whom he had his case, heard it in his Chamber and not in the court, room. This was rather unexpected and could not be foreseen and apparently that was the reason why, when the case was called, the information was not reached to Mr. Verma. He must have been searched for and was not found and therefore there was non-appearance. When we know the actual reason how non-appearance arose it is unnecessary to consider whether, if other arrangements had been made, the default could have been averted. It may be that the pleader did not undertake to remain in attendance and save the plaintiff from non-appearance. But a party, who engaged two pleaders could reasonably expect that the default in appearance might ordinarily not occur. It does not appear that the plaintiff had been specially warned by his pleaders that they could not be depended upon for appearing in the case on the date in question.