Research › Browse › Judgment

Allahabad High Court · body

1976 DIGILAW 819 (ALL)

Ram Kirpal v. Subedar

1976-11-30

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, Member. - This is a reference made by Sri S.M. Hasan, Additional Commissioner, Faizabad Division, Faizabad recommending that the revision against the order dated July 29, 1971 passed by the Sub-Divisional Officer, Tarabganj, district Gonda in a case under Section 209, U.P.Z.A. and L.R. Act Subedar v. Ramkripal, may be rejected. 2. I have heard the learned counsels for the parties and have gone through the record. 3. Subedar had filed a suit under Section 209, U.P.Z.A. and L.R. Act against Ram Kripal and others. The trial court dismissed the suit on November 25, 1970 in default of the plaintiff. However, on November 25, 1970 itself the plaintiff moved an application before the trial court stating that he was very much present in the Court on the date but could not respond when the case was called as he did not hear the call. The trial court, thereupon ordered the issue of summons to the contesting defendants for January 17, 1971. Thereafter on July 29, 1971 the trial court passed the following order; "Heard applicant and learned counsel for defendant. The application for restoration was moved on November 25, 1970 the date of dismissal of the suit itself to meet the ends of justice the order of November 25, 1970 is set aside subject to payment of Rs. 8/- as costs." The defendant Ramkripal has come in revision against this order. 4. The learned counsel for the revisionist has tried to assail this order on the ground that the trial court has exercised jurisdiction not vested in it in restoring the suit without arriving at the finding that there was sufficient cause for absence and that there was absolutely no bana fide ground for absence. The contentions of the learned counsel have no force at all. A perusal of the record shows that the plaintiff was in fact present on the date of hearing, and it is incorrect to say that he was absent. The question of showing bona fide grounds for absence, therefore, does not arise at all. 5. As regards the contention that the trial court has exercised jurisdiction not vested in it, this too cannot be accepted. The order of the trial court shows that there were sufficient cause for allowing the restoration application. The question of showing bona fide grounds for absence, therefore, does not arise at all. 5. As regards the contention that the trial court has exercised jurisdiction not vested in it, this too cannot be accepted. The order of the trial court shows that there were sufficient cause for allowing the restoration application. The two causes mentioned in the order itself are, firstly that the application for restoration was moved on November 25, 1970, the date of dismissal of the suit itself, that is to say, the plaintiff was in fact not absent on the date when the suit was dismissed in his default, and secondly, that the restoration was necessary to meet the ends of justice. Both these causes are undoubtedly 'sufficient' within the meaning of Order IX Rule 9 C.P.C. The trial court passed the order of restoration after hearing both the parties and thus it cannot be said that any irregularity or illegality in the exercise of its jurisdiction was committed. 6. I entirely agree with the recommendation of the learned Additional Commissioner that the order of the trial court does not suffer from any error or irregularity. The revision is accordingly dismissed as having no substance.