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Baqar HussaIn and ors. Vs. Tirpati Govind Nath Tewari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All464
AppellantBaqar HussaIn and ors.
RespondentTirpati Govind Nath Tewari
Cases ReferredRam Sarup v. Gaya Prasad
Excerpt:
.....service on some of the defendants. 2. after going through the order sheet we are satisfied that the court did act under order 9, rule 2. under the circumstances, it had jurisdiction in re-admitting the suit to its original number, under rule 4. our attention was drawn to a ruling of this court [ram sarup v......of damages for his failure to get certain summonses served on some of the 117 defendants to the suit. subsequently the plaintiff offered to pay the amount of damages and the suit was restored. it is clear that the court believed all along that it was acting under order 9. rule 2, as it had some justification in doing so, because the default made by the plaintiff was his failure to pay charges for service on some of the defendants. when an order was made on 8th august, the threat held out to the plaintiff was that the suit would be dismissed in default (adam pairawi). subsequently two hours later when the sum was not deposited, the court specifically mentioned that the suit was dismissed in default. in revision it is argued that the court acted under order 17, rule 3, and that,.....
Judgment:

1. The plaintiff's suit for redemption was first dismissed according to the lower appellate Court for default because he failed to pay a certain amount demanded from him by way of damages for his failure to get certain summonses served on some of the 117 defendants to the suit. Subsequently the plaintiff offered to pay the amount of damages and the suit was restored. It is clear that the Court believed all along that it was acting under Order 9. Rule 2, as it had some justification in doing so, because the default made by the plaintiff was his failure to pay charges for service on some of the defendants. When an order was made on 8th August, the threat held out to the plaintiff was that the suit would be dismissed in default (adam pairawi). Subsequently two hours later when the sum was not deposited, the Court specifically mentioned that the suit was dismissed in default. In revision it is argued that the Court acted under Order 17, Rule 3, and that, therefore, the proper remedy of the plaintiff was an appeal and not an application for re-admission under Order 9, Rule 4, of the Code of Civil Procedure.

2. After going through the order sheet we are satisfied that the Court did act under Order 9, Rule 2. Under the circumstances, it had jurisdiction in re-admitting the suit to its original number, under Rule 4. Our attention was drawn to a ruling of this Court [Ram Sarup v. Gaya Prasad : AIR1925All610 . In that case, however, the Court definitely stated that there was no reason for re-hearing and still accepted the application for rehearing. This Court, therefore, held that the lower Court had no jurisdiction in the matter. In the present case there is no such statement in the order of the lower Court. It appears from the action taken by the lower Court that in its opinion there was a reason for rehearing.

3. We dismiss this application with cost's.


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