BHUMIJA DEVI Vs. GIRJA NAND TIWARY

JUDGEMENT

(1.) HEARD the parties. Partition Suit No. 132 of 1983 was dismissed for default on 4.2.1997 and on 7.2.1997 a petition was filed in the suit to review the said order and recall it. Further on 25.2.1997 a petition was also filed under Order IX, Rule 9 of the Code of Civil Procedure to restore the said suit, which was registered in Misc. Case No. 6 of 1997. By impugned order dated 19.1.2002 both Misc. Case No. 6 of 1997 was dismissed as well as review petition dated 7.2.1997 was also rejected. Plaintiffs have, therefore, filed the present appeal and revision separately against the aforesaid two orders. Hence both the cases have been heard together and are disposed of by a common order.

(2.) IT is not in dispute that 4.2.1997 was the date fixed in the suit for the defendants to adduce evidence. When the suit was called out, Ajit Kumar Tiwary, plaintiff No. 2, who was present in Court went out to call the lawyer and by the time he came back in Court with his lawyer, the suit was already dismissed for plaintiffs absence. On the said date defendants had to produce witnesses and only after examination -in -chief the plaintiffs were required to cross -examine them. However, immediately thereafter on 7.2.1997 plaintiffs filed the petition to review order of dismissal and recall the same. Further on 25.2.1997 Misc. Case No. 6 of 1997 was filed to restore the suit.