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Gaura Bibi and ors. Vs. Ghasita - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All123
AppellantGaura Bibi and ors.
RespondentGhasita
Excerpt:
civil procedure code (1908), order xvii, rule 3; order ix, rule 4 - adjourned hearing--suit dismissed on merits--remedy of plaintiff--procedure. - - a perusal of the munsif's order leaves no doubt whatever that he intended to act under order xvii, rule 3. he says distinctly that he dismisses the applicants' claim because the document in suit has not been proved. it is perfectly that the munsif proceeded under order xvii, rule 3. that being so, according to the decision of the full bench in lalla prasid v......suit. a perusal of the munsif's order leaves no doubt whatever that he intended to act under order xvii, rule 3. he says distinctly that he dismisses the applicants' claim because the document in suit has not been proved. twelve days later the applicants presented a petition to the court under order ix, rule 4, for restoration of the case. the munsif held that that rule did not apply, inasmuch as he had disposed of the case on the merits. he dismissed the application, and his order has been confirmed on appeal by the district judge. in support of this application for revision it is contended that the munsif ought to have proceeded under order xvii, rule 2, inasmuch as order xvii, rule 3, should not be resorted to where rule 2 is applicable. we have been referred to a number of decisions.....
Judgment:

Karamat Husain and Chamier, JJ.

1. This is an application for revision of an order of the Munsif of Gorakhpur and of an appellate order of the District Judge of Gorakhpur. The facts are as follows:-- The applicants brought a suit against the respondent in the court of the Munsif of Gorakhpur in which summons was issued for final disposal of the suit for the 5th of August, 1910. On that date the respondent filed a written statement denying the claim. The applicants applied for amendment of the plaint. This was allowed, and the case was put off to duce the certificate. The applicants' witnesses were not in attendance. The applicants, therefore, asked for a postponement of the case. This was allowed, and the case was fixed for August the 30th, 1910. On that date the respondent was present, but the applicants were absent. Their pleader, who was present in court, said that he had no instructions to go on with the case. The Munsif then dismissed the suit. A perusal of the Munsif's order leaves no doubt whatever that he intended to act under Order XVII, Rule 3. He says distinctly that he dismisses the applicants' claim because the document in suit has not been proved. Twelve days later the applicants presented a petition to the court under Order IX, Rule 4, for restoration of the case. The Munsif held that that rule did not apply, inasmuch as he had disposed of the case on the merits. He dismissed the application, and his order has been confirmed on appeal by the District Judge. In support of this application for revision it is contended that the Munsif ought to have proceeded under Order XVII, Rule 2, inasmuch as Order XVII, Rule 3, should not be resorted to where Rule 2 is applicable. We have been referred to a number of decisions of different courts on the question, the latest and most important of which are Mariannissa v. Ramkalpa Gorain (1907) I.L.R 34 Calc. 235; Ningappa Virtappn Yelloor v. Gowdappa (1905) 7 Bom. L.R. 261; Maharaja of Visianagram 7. Lingam Krishna Bhupati (1902) 12 M.L.J. 473 and Chandramathi Ammal v. C.S. Narayanaeami Iyer (1909) 19 M.L.J. 760. These decisions show that there is some conflict of opinion as to the circumstances in which Rules 2 and 3 of Order XVII, should be resorted to. We do not think it is necessary to consider or decide the question. It is perfectly that the Munsif proceeded under Order XVII, Rule 3. That being so, according to the decision of the Full Bench in Lalla Prasid v. Nand Kislwre (1907) I.L.R. 34 Calc. 235 the applicants' remedy was by way of appeal against the decree of the Munsif. We hold that this application is not maintainable. It is accordingly dismissed with costs.


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