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2003 DIGILAW 1009 (PAT)

Ram Chandra Sao v. Bal Kishun Sao

2003-09-12

P.K.DEB

body2003
Judgment 1. Heard learned counsel for the parties. 2. This appeal has been preferred by the plaintiffs-appellants under Order-43 Rule-1 (c) C.P.C. against the order dated 20.9.1977 passed by Sub-Judge-III, Barh, in Misc. Case No. 4/1997. 3. The facts of the case is that Title Suit No. 104/1995 was filed by the above named plaintiffs-appellants and it was fixed for evidence of the plaintiffs on 5.3.1997. The plaintiffs were present in the court but no steps were taken or Pairvi could be done as the Advocate for the plaintiffs was absent in the court due to his illness and when afterwards the plaintiffs came to the court with late fee Haziri they found the suit dismissed for default on 5.3.1997. Hence, a petition was filed under Order-IX Rule-IX C.P.C. for restoration of the suit which was registered as Misc.Case No. 4/1997. The case was contested from the side of the defendants. According to them, neither the plaintiffs were present on the date nor steps were taken and as such dismissal was rightly recorded. Their plea was that the Advocate for the plaintiffs was not absent due to his illness and hence pairvi could not be done is a false piea. 4. During the course of the evidence the witnesses of the petitioner-plaintiffs had made some contradictions in their deposition regarding ailment of the Advocate and ailment of the son of the Advocate. Whatever might be the position I think that either the Advocate was ailing or his son was ailing. The Advocate of the plaintiffs was not present at the time and as such pairvi could not be done. It is not being the fact that the plaintiffs came late in the court. Only because of the contradiction of the evidence of the petitioners regarding the ailment of the son of the Advocate or the ailment of the Advocate, the learned court below rejected the petition of the petitioner under Order IX, Rule-IX C.P.C. 5. All the High Courts and even the Apex Court have also held that such matters as regards Order-IX, Rule IX C.P.C. proceeding should be taken leniently when a suit with heavy incurring expenditures have been dismissed for default for some grounds which might be caused due to genuity. The fact remains in the present case that the Advocate of the Plaintiffs was absent on that date when the case was called out. The fact remains in the present case that the Advocate of the Plaintiffs was absent on that date when the case was called out. It might be that due to the Advocates ailment or his sons ailment the plaintiffs could not do pairvi in the case on that date. It is true that some laches are there on the part of the plaintiffs. The plaintiffs ought to have filed a petition seeking adjournment due to absence of their Advocate. But for the laches either on the part of the Advocate or on the part of the plaintiffs themselves, the learned trial court ought not to have taken such decision as in the impugned order itself. 6. On considering the facts and circumstances and also on considering the principle that a client should not suffer for the laches on the part of his Advocate, Misc. Appeal is allowed by allowing Misc. Case No. 4/1997 by setting aside the order of dismissal on condition of payment of Rs. 250/- from the side of the plaintiffs to the defendants within a period of one month before the court below from the date of receipt of a copy of this order. On such pre-condition being satisfied Title Suit No. 104/1995 should be restored to file and then proceed in accordance with law.