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Behari Lal Vs. Maqsood Ali - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All189; 71Ind.Cas.283
AppellantBehari Lal
RespondentMaqsood Ali
Cases ReferredLalta Prasad v. Ram Karan
Excerpt:
civil procedure code (act v of 1908), order ix, rules 8, 9 - dismissal for default--restoration. - - there was a delay of something like 45 minutes before the plaintiff and his pleader were able to come to the court and by that time the suit had been dismissed for default. this case is very like the case reported in lalta prasad v......was at the time engaged in cross-examining a witness in another court and he was not able to attend the small cause court till after some title time. in the meantime, the case was called on and, as is usual in the mofussil courts, the names of the parties were called out by the peon outside and inside the court. the plaintiff was present and must have heard his name being called but he did not go into court but apparently went after his pleader. there was a delay of something like 45 minutes before the plaintiff and his pleader were able to come to the court and by that time the suit had been dismissed for default. the plaintiff applied to have the order set aside and as the court put it: 'the only ground on which he bases his case is that as his vakil was engaged he could not.....
Judgment:

Ryves, J.

1. This is an application in civil revision, asking this Court to set aside the order of the Judge of Small Causes at Cawnpore, refusing to restore a suit which had been dismissed for default. There is not really any serious dispute as to the facts. The suit was to recover money on a bond. On the date fixed for hearing, the plaintiff was present in Court but he left the precincts of the Court to attend a criminal case in which he was engaged. On return to the Small Cause Court he heard that his case was about to be called on. He went to call his Pleader but the Pleader was at the time engaged in cross-examining a witness in another Court and he was not able to attend the Small Cause Court till after some title time. In the meantime, the case was called on and, as is usual in the Mofussil Courts, the names of the parties were called out by the peon outside and inside the Court. The plaintiff was present and must have heard his name being called but he did not go into Court but apparently went after his Pleader. There was a delay of something like 45 minutes before the plaintiff and his Pleader were able to come to the Court and by that time the suit had been dismissed for default. The plaintiff applied to have the order set aside and as the Court put it: 'The only ground on which he bases his case is that as his Vakil was engaged he could not attend. But the plaintiff himself could attend. He could take time. Instead of this he deliberately left the precincts of the Court. He did not even respond to the call of the peon while he was a few yards away. The Court had to wait for 45 minutes.'

2. I am not prepared to say that the plaintiff has made out such a case that he could reasonably ask the Court as of right to restore his case, but I think under, the circumstances, inasmuch as he was present in Court and had come there for the purpose of prosecuting his case, and his witnesses were there apparently, at any rate, he was ready to go on with the case and would have done so if his Vakil had been able to come at once, because he was either too timid or too foolish to come into Court without his Vakil and ask for the Court's indulgence, that he should be punished by having his claim dismissed without a hearing and without a possibility of trial. This case is very like the case reported in Lalta Prasad v. Ram Karan 14 Ind. Cas. 187 : 34 A. 426 : 9 A.L.J. 666 and, so much so, that I feel I ought to follow it. I think justice will be done by putting the plaintiff on terms.

3. I set aside the order of the Court below and direct the Court to restore the case to its original file and after giving sufficient notice to the parties to proceed with the trial according to law, subject to this proviso that within 15 days of the receipt of this order in the Court below the plaintiff deposits Rs. 50 which will be made over to the defendant in any event to indemnify him for any loss he may have been put to owing to the fault of the plaintiff. If this money is not deposited within the time then this application will be held to have been rejected and no further orders will be necessary, that is to say, if within 15 days' time of the receipt of this order by the Court below the money is not paid into Court, the learned Judge of the Small Cause Court will consider this application rejected and will not proceed with the case. There is no order for costs.


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