CHHOTALAL MOHANLAL Vs. AMBALAL HARGOVAN

JUDGEMENT

(1.) The applicant before us was the plaintiff in a suit pending in the Court of the first-class Subordinate Judge of Kaira. It was called on for settlement of issues on Jane 15, 1,922. At that time the applicant was not present in Court, and the suit was dismissed for default. He came into the Court about two hours later and told the Judge that his train was late on account of an accident, and also pointed out the difficulty of getting tongas. The applicant was asked by. the Court why he did not wire from Mehmadabad. The applicant replied that ha did not do so as he was to come. He adduced evidence that tongas were not available; that the train was late; and that he had gone into the Mehmadabad station to wire to the Court. An application was made thereafter (Miscellaneous Application No. 9 of 1922), to restore the suit to the board. The Judge considered the evidence of the applicant was untrustworthy, and that even if the train by which the applicant; was travelling had reached Mehmadabad station in time, he would not have been able to reach the Court before Court hours. The applicant should have started on the preceding day. He, therefore, rejected the application with costs.

(2.) In appeal the District Judge said :- In the present case the summons had been issued for the settlement/ of issues. Neither the plaintiff nor his pleader put in an appearance The absence of the plaintiff attracted the consequences provided in Order IX, Rule 8. There was, therefore, nothing irregular in the dismissal of the suit-under that rule. The appeal was dismissed under Order XLI, Rule 11, of the Civil Procedure Code.

(3.) The applicant has come to this Court in revision. It is true that there was nothing irregular in the dismissal of the suit, the mistake occurred in rejecting the application to restore the suit to the file. We have more than once laid it down as a rule of practice to be observed in the subordinate Courts that when a party arrives late before the Judge, and finds that his suit or application has been dismissed before his arrival, he is entitled to have his suit or application restored on payment of such costs as may have been incurred by reason of his default by the opponents. The proper order, therefore, for the Subordinate Judge to have made was to grant the application and make the applicant pay the costs. That is the order which we make now. As the applicant was in default, there will be no order as to costs in the lower Court and in this Court.