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2003 DIGILAW 49 (JHR)

Sabitri Devi v. Bijay Kumar Yadav

2003-01-09

M.Y.EQBAL

body2003
ORDER M.Y. Eqbal, J. 1. Limitation in filing this revision application is condoned. 2. Heard learned counsel for the petitioner and Mr. Manish Kumar Jha, learned counsel appearing for the opposite party- Insurance Company. 3. The only question that falls for consideration is as to whether the District Judge. Dumka is correct in law in holding that Misc. Case No. 10/2001 filed under Order IX, Rule 4 of the Code of Civil Procedure for restoration of Title Claim Suit No. 28/92 is not maintainable. 4. The facts of the case lies in a narrow compass. 5. The claimant/petitioner filed the aforesaid suit for grant of compensation under the Motor Vehicles Act. The suit was fixed for hearing on 24.5.2001, as it appears from the order-sheet. The claimant/ petitioner filed attendance of one witness but when the case was called out; neither the claimant nor his counsel appeared in court. The witness whose Haziri was filed disclosed himself to be the son of the claimant, but on quarry it was found that he was not the son of the claimant. The District Judge therefore dismissed the suit for non prosecution holding that the claimant did not produce witnesses although the suit has been coming for hearing for the last so many years. Petitioner thereafter filed application under Order IX, Rule 4 of the CPC for restoration of the suit, which was registered as Misc. Case No. 10/2001. The District Judge dismissed the said Misc. case holding that the same is not maintainable as on the date of hearing the claimant filed her Haziri. 6. Order IX deals with the procedure that may be adopted by the Court in consequence of non-appearance of the parties. Rule 3 of Order IX provides that where neither party appears on the date fixed for hearing, court shall dismiss the suit. Order IX, Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called for hearing the court shall dismiss the suit. In both the situations, application for restoration is maintainable either under Order IX, Rule 4 of the CPC or under Order IX, Rule 9 of the CPC. It is, therefore, clear that if the suit is fixes for hearing and the parties fail to appear or fail to produce evidence then the suit shall be dismissed. In both the situations, application for restoration is maintainable either under Order IX, Rule 4 of the CPC or under Order IX, Rule 9 of the CPC. It is, therefore, clear that if the suit is fixes for hearing and the parties fail to appear or fail to produce evidence then the suit shall be dismissed. There is another instance where suit was fixed for hearing and some of the witnesses were examined and the suit was adjourned for further hearing on such date of hearing if the parties do not appear or do not produce witness then the court shall take recourse under Order XVII of the CPC. For better appreciation Order XVII, Rule 2 of the CPC is quoted herein below ; "Procedure if parties fail to appear on day fixed.--Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf of Order IX or make such other order as it thinks fit." 7. From bare perusal of the aforesaid provision, it is clear that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the suit shall be disposed of either in one mode provided under Order IX of the CPC or the Court may pass such order as it deem fit. Even assuming in the midst of the hearing of the suit any party fails to appear or produce witness, tile court may dispose of the suit in the manner provided under Order IX of the CPC. In the instant case, from perusal of the order dated 24.5.2001, it appears that the court below dismissed the suit for default (Adam pairavi me Kharij karta him). The court below therefore adopted the mode provided under Order IX of the CPC. Hence in my opinion, application for restoration filed under Order IX is maintainable. Actually application for restoration ought to have been under Order IX, Rule 9 of the CPC. Nomenclature of the application will not be a guiding factor for the court. 8. The court below therefore adopted the mode provided under Order IX of the CPC. Hence in my opinion, application for restoration filed under Order IX is maintainable. Actually application for restoration ought to have been under Order IX, Rule 9 of the CPC. Nomenclature of the application will not be a guiding factor for the court. 8. For the reasons aforesaid, this revision application is allowed and the impugned order is set aside and the matter is remitted back to the court below to dispose of the Misc. case treating the restoration application under Order IX, Rule 9 of the CPC. However, there shall be no order as to costs.