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Marwadi Doolaji Siremal Vs. Nasuvali Kulusum Bee and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1934Mad66; 151Ind.Cas.765
AppellantMarwadi Doolaji Siremal
RespondentNasuvali Kulusum Bee and anr.
Cases Referred and Barn Madho Ram v. Mahadeo Pandey
Excerpt:
civil procedure, code (act v of 1908), section 115, order ix, rule 9 - dismissal for default--application for restoration--revision, competency of--sufficient cause for restoration. - .....another matter--whether there are adequate grounds for interference in revision the fact that an appeal lies against the decree in the suit vide muniswami gouda y. janjadu, 35 ind. cas. 65 (2) is therefore irrelevant and cannot stand in the way of the petition under order ix, rule 9, being considered and the matter carried to higher courts. i overrule the objection.2. on the merits, though the matter seems to be a hard case, i do not see any reason to interfere. the facts proved and found by the courts below are (1): the plaintiff has given up his former vakil (2) he has informally engaged another vakil but not completed the engagement: (3): neither he nor the new vakil was present in court when the case was called.3. the plaintiff has to thank himself for the result.4. only one.....
Judgment:

Ramesam, J.

1. A preliminary objection has been taken that no civil revision petition lies and Barn Madho Ram v. Mahadeo Pandey : AIR1930All604 is relied on. I am not inclined to agree with that decision Order IX, Rule 9, explicitly permits the plaintiff to apply for restoration of the dismissed petition. Once a petition to restore lies, the party has necessarily the right, to question the correctness of the order on it in appeal and on revision. It is another matter--whether there are adequate grounds for interference in revision The fact that an appeal lies against the decree in the suit vide Muniswami Gouda y. Janjadu, 35 Ind. Cas. 65 (2) is therefore irrelevant and cannot stand in the way of the petition under Order IX, Rule 9, being considered and the matter carried to higher Courts. I overrule the objection.

2. On the merits, though the matter seems to be a hard case, I do not see any reason to interfere. The facts proved and found by the Courts below are (1): The plaintiff has given up his former Vakil (2) He has informally engaged another Vakil but not completed the engagement: (3): Neither he nor the new Vakil was present in Court when the case was called.

3. The plaintiff has to thank himself for the result.

4. Only one observation I wish to make Mr. Achayya Chetty, the former Vakil who was present in Court might have offered to proceed with the case--seeing that the defendants have to call witnesses to prove the payments pleaded and he has only to cross-examine them if he had done so, his conduct would have been praiseworthy. I do not say that he is not within his rights--in refusing to do so.

5. The petition is dismissed with costs (only one set in this Court) to be shared equally by the respondents.


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