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Maharaj Shib Charan Dass Vs. Mohamed Zahur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1920All219(1); 57Ind.Cas.245
AppellantMaharaj Shib Charan Dass
RespondentMohamed Zahur and ors.
Excerpt:
civil procedure code (act v of 1908), order ix, rule 8, order xliii, rule 1(c) - dismissal of suit for default--application for restoration, dismissal of--appeal, maintainability of. - - the proceedings of the trial court, however, clearly show that the dismissal was for default under order ix, rule 8, of the code of civil procedure......pleader for the plaintiff appeared and asked for an adjournment stating that he was unwell. the trial court refused to grant an adjournment and suggested that if he was unwell, another pleader could be engaged to take his place. the pleader who prayed for the adjournment then went away to at range for some other pleader to take his place. the trial court waited for some time for another pleader to appear, but as no other pleader appeared, and the plaintiff was absent, it dismissed the suit; for the non appearance of the plaintiff and his pleader.2. an application was then made by the plaintiff to set aside the order of dismissal, the trial court refused to grant the application and the lower appellate court refused to entertain an appeal from that order of refusal, holding that the.....
Judgment:

1. This is an application in revision for the discharge of an order passed by the Court below, refusing to entertain an appeal from an order, by which an application for the restoration of a suit to the file was dismissed. The suit in connection with which the said application was made, was fixed for final hearing on the 4th February 1918. On that day the Pleader for the plaintiff appeared and asked for an adjournment stating that he was unwell. The trial Court refused to grant an adjournment and suggested that if he was unwell, another Pleader could be engaged to take his place. The Pleader who prayed for the adjournment then went away to at range for some other Pleader to take his place. The trial Court waited for some time for another Pleader to appear, but as no other Pleader appeared, and the plaintiff was absent, it dismissed the suit; for the non appearance of the plaintiff and his Pleader.

2. An application was then made by the plaintiff to set aside the order of dismissal, the trial Court refused to grant the application and the lower Appellate Court refused to entertain an appeal from that order of refusal, holding that the dismissal was not really one for non appearance. The proceedings of the trial Court, however, clearly show that the dismissal was for default under Order IX, Rule 8, of the Code of Civil Procedure. The order refusing to restore the suit to the file, was, therefore, appealable under Order XLIII, Rule 1, Clause (c) of the Code of Civil Procedure. The lower Appellate Court was not right in treating the application for restoration as unentertainable.

3. The application is, therefore, allowed and the appeal is remanded to the lower Appellate Court with a direction to restore it under its original number and to dispose of it in the manner provided by law. The applicant will get his costs of this revision from the opposite parties including fees on the higher scale.


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