SEBA AGRAWAL Vs. KAPILDEO NARAIN AGRAWAL

JUDGEMENT

(1.) IN this civil revision application the petitioners have assailed the judgment dated 2.7.2004 passed by the 1st Additional District Judge, Sahebganj in M.A. No.5/2003 whereby the 1st Additional District Judge has dismissed the appeal and affirmed the order of the Sub -Judge -I, Rajmahal in Miscellaneous Case No. 1/2001.

(2.) THE petitioners were the plaintiffs. They filed Title Suit No. 13/86 in the Court of the Sub -Judge -I, Rajmahal praying relief for grant of mandatory injunction directing the defendants -opposite parties to vacate the suit house and for permanent injunction restraining them from dispossessing the plaintiffs. The defendants had appeared and contested the suit. Thereafter, on behalf of the plaintiffs, one witness was examined as PW 1. In the meanwhile, the sole plaintiff died and the petitioners were substituted in her place. They appointed an attorney by executing power -of - attorney, who, according to the petitioners, was given charge of locking after the said suit. The petitioners ' case is that the said attorney duped the petitioners allegedly in connivance with the defendants -opposite parties and did not take proper steps. He also did not inform the petitioners about the progress of the case. Smelling foul the petitioners then appointed another attorney. Due to the negligence of the previous power -of -attorney holder, the said suit was dismissed for default on 5.8.2000. The petitioners then unsuccessfully proceeded praying for recall of the order but ultimately were well advised to file miscellaneous case under Order LX, Rule 9, CPC. The same was registered as Miscellaneous Case No. 1/2001. In the said case the petitioners examined the witnesses in order to support their claim that they were prevented from appearing in the Court when the suit was called on for hearing under the circumstances beyond their control. On behalf of the defendant -opposite party one witness was examined. The learned Subordinate Judge -I passed an order dated 9.5.2003 in which he has taken into consideration the past laches of the petitioners and branded them 'lethargic litigants ', doubted their bona fide in agitating the issue under Order IX, Rule 9, CPC and observed that initially the petitioners had not come before the Court with clean hands and dismissed the miscellaneous case.

(3.) MR . Ajay Kumar Singh, learned counsel appearing on behalf of the petitioners, submitted that the judgment/order of the Courts below are unsound, improper and passed in illegal exercise of jurisdiction. According to the learned counsel, the only consideration to be taken for deciding the case under Order IX, Rule 9, CPC is the sufficient cause for non -appearance when the suit vyas called on for hearing. According to the learned counsel, the Courts below have not given any finding that no sufficient cause was shown by the petitioners for their non -appearance when the suit was called on for hearing on the day it was dismissed, rather the Courts below have taken into consideration the past conduct and acted hypothetically in holding that initially the petitioners had not approached the Court with clean hands, which are not relevant consideration for dealing with a case under Order IX, Rule 9, CPC.