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Pandurang Veduram Vs. Mohan Chhatrabhuj - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in80Ind.Cas.178
AppellantPandurang Veduram
RespondentMohan Chhatrabhuj
Excerpt:
civil procedure code, (act v of 1908), section 115, order ix, rule h - absence of plaintiff--dismissal of suit--revision--procedure. - - that was most unfortunate and it may very well be that the plaintiff was misled in making this application owing to the way in which the case was dealt with by the subordinate judge......denies the claim. on the record it appears that issues were raised, the judge found on the issues and rejected the claim with costs. an application was made to this court, in revision on the ground that the court, on the day of the hearing when an application was made for adjournment as the plaintiff was ill, rejected the application and dismissed the suit wrongly. if the plaintiff was absent and the pleader had no instructions to conduct the suit then there was no reason for the court to raise issues or if issues were raised to find on them. if the plaintiff does not appear either in person or by a pleader who has instructions to go on with the suit, then the suit must be dismissed under order ix, rule 8. in such a case the party aggrieved by the order can apply for a review of.....
Judgment:

1. The plaintiff has filed this suit to recover Rs. 112-8-0 from the defendant with costs and interest representing the estate of the deceased Chhatrabhuj. The defendant denies the claim. On the record it appears that issues were raised, the Judge found on the issues and rejected the claim with costs. An application was made to this Court, in revision on the ground that the Court, on the day of the hearing when an application was made for adjournment as the plaintiff was ill, rejected the application and dismissed the suit wrongly. If the plaintiff was absent and the pleader had no instructions to conduct the suit then there was no reason for the Court to raise issues or if issues were raised to find on them. If the plaintiff does not appear either in person or by a pleader who has instructions to go on with the suit, then the suit must be dismissed under Order IX, Rule 8. In such a case the party aggrieved by the order can apply for a review of the order or apply for an order to set aside the order of dismissal. The plaintiff applied neither for review nor for a rule. Owing to the Judge having found on the issues he thought that the order passed was a decree. That was most unfortunate and it may very well be that the plaintiff was misled in making this application owing to the way in which the case was dealt with by the Subordinate Judge. It is still open to the plaintiff to apply to the Subordinate Judge to restore the suit to the board if he can induce the Judge to excuse the delay. We cannot direct that the delay shall be excused but no doubt when the application is made everything that has been urged before us as regards the misunderstanding, which was the reason why the plaintiff did not make the application sooner, will be heard and considered by the Judge. The rule must be discharged.


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