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2004 DIGILAW 731 (PAT)

Ganesh Prasad v. Lakshman Dusadh

2004-07-22

S.N.HUSSAIN

body2004
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. This civil revision has been filed by the plaintiff of Title Suit No. 7/1983 which was filed for declaration of his title and for order of injunction and for other ancillary reliefs. 3. The short matrix of the case is that the aforesaid suit was dismissed for default on 26.11.1987 by the learned Subordinate Judge, Aurangabad, when the plaintiff did not appear in the suit for several days. The plaintiff thereafter filed Misc. Case No. 2/1988 for recalling the said order of dismissal and for restoration of the suit. The said misc. Case No. 2/1988 was also dismissed by order dated 26.4.1997 against which the plaintiff filed Misc. Appeal No, 6/1997 which was dismissed by the learned District Judge, Aurangabad, by the impugned order dated 5.2.2002 on the ground that the plaintiff was continuously negligent. 4. The learned counsel for the petitioner challenged the aforesaid orders on the ground that the learned Court below did not appreciate that he could not appear in the suit on some dates. He contended that on 22.7.1987 the plaintiff appeared in the suit and the Court ordered for Gazette Notification of the notice for appearance of the defendants. He further claimed that thereafter the plaintiff fell ill due to serious disease of Hepatitis and hence, he could not appear on five dates i.e. 14.8.87, 8.9.87, 25.9.87, 12.11.87 and 26.11.87, the date on which that the plaintiff had produced the Doctors Certificate and had also examined the Doctor to prove his ailment. But the learned Court below instead of accepting the said plea rejected the plaintiffs case only on the frivolous assumptions that the plaintiff had claimed hospitalization which was denied by the Doctor who was his own witness. He stated that the claim of the plaintiff was only that he remained in the clinic of the Doctor till 11 p.m. which was fully proved by the Doctor. The learned counsel for the petitioner further averred that the father and brothers of the petitioner were living separately and he had no concern with them and he had filed the suit independently, with which other members of the family had no concern. 5. The learned counsel for the petitioner further averred that the father and brothers of the petitioner were living separately and he had no concern with them and he had filed the suit independently, with which other members of the family had no concern. 5. On the other hand, the learned counsel for the Opposite parties vehemently opposed the aforesaid contention of the learned counsel for the petitioner claiming that from the order- sheet it was quite apparent that the plaintiff remained absent for about eighteen dates and hence the learned court below was fully justified in holding that he was negligent and not interested in continuing with the suit. He further stated that both the learned Courts below have dis-believed the Medical reports submitted by the plaintiff as claim of hospitalization was denied by his own Doctor. He also contended that if the plaintiff was really ill and wanted to continue with the suit he could have sent any friend or relative to ask his counsel to pray for adjournment of the suit on such ground. The learned counsel for the Opposite parties has also averred that the civil revision was barred by the provision of Limitation Act as the Misc. Case was filed by the plaintiff-petitioner under Order-IX, Rule-4 C.P.C. and any order passed therein was not appealable and only a Civil revision could have been filed against it. Hence, even if this petition is considered to be against an order in Misc. Case, this Civil revision is hopelessly barred by the law of limitation. It is also submitted on behalf of the Opposite parties that the Misc. Appeal filed by the plaintiff-petitioner was not maintainable as there was no provision for any Misc. Appeal under Order XLIII, Rule-1 CPC against any order passed under Order-IX, Rule-4 CPC. In this connection, the learned Counsel for the Opposite parties relied upon a decision reported in 1995 (2) BLJ 24 (State Bank of India V/s. Ganesh Prasad and Anr.) He also contended that there was no jurisdictional error and since the matter had been decided by both the courts below, this civil revision filed u/s. 115 CPC was not maintainable. 6. 6. Having heard the learned counsel for the parties and after perusing the record of the case, I find that since the defendants had appeared in the suit on 26.11.1987 which is apparent from the order sheet itself, there was no occasion for application of Order-IX, Rule-4 CPC and Wrong legelling of Section can not legally affected the said Misc. Case which is clearly covered by the provision of Order-IX, Rule-9 CPC against which Misc. Appeal is provided under Order-XLIII Rule-1 (c) CPC and in the aforesaid circumstances the Misc. Case as well the Misc. Appeal was maintainable before the respective Courts. I further find that the learned Court of appeal below has clearly mentioned that the claim of the plaintiff-petitioner that he remained in the clinic of the Doctor till 11 p.m. was supported by the Doctor himself, and in addition to that it was clear from the pleadings and the evidence that no claim of the plaintiff- petitioner being in hospital was raised or sought to be proved. Hence, there was no occasion for the learned Courts below to reject the plea of the ailment of the plaintiff-petitioner on that ground. It is also not proved that the father and brothers of the plaintiff were living with the plaintiff and hence there was no occasion of surmises and conjectures that the relatives of the plaintiff could have come and act as the pairvikar of the plaintiff. It is clear from the order-sheet of the Title Suit that on 22.7.1987 the plaintiff had appeared in the suit but no one appeared on behalf of the defendants even after several notices and hence the Court ordered for Gazette Notification of the notice for appearance of the defendants. The said order of Gazette Notification was complied by the plaintiff, although, much belatedly on 1.9.1988. However, after 22.7.1987 the plaintiff remained absent on five continuous dates i.e. 14.8.87, 8.9.87, 25.9.87, 12.11.87 and 26.11.87 due to the serious ailment of Hepatitis as per the claim of the plaintiff, which in my view, has been fully supported by valid materials and there was no material at all to dis-believe the same. However, after 22.7.1987 the plaintiff remained absent on five continuous dates i.e. 14.8.87, 8.9.87, 25.9.87, 12.11.87 and 26.11.87 due to the serious ailment of Hepatitis as per the claim of the plaintiff, which in my view, has been fully supported by valid materials and there was no material at all to dis-believe the same. Furthermore, the assumption of the learned Court below that the plaintiff has lost interest in the suit can not be believed in the circumstances that even during the pendency of the suit he appeared on several dates and he also got the notices tiled and got the notice notified in the Gazette and after the dismissal, of the suit the plaintiff has filed the Misc. Case, Misc. Appeal and Civil revision within the prescribed period. 7. In the aforesaid circumstances, I allow this civil revision, set aside the impugned orders of both the learned courts below. I also set aside the order dated 26.11.1987 passed by the learned Sub-ordinate Judge-I, Aurangabad, in Title Suit No. 7/1983 and direct the said court to restore the same to its original file and number. This order will be subject to a cost of Rs. 2000.00 (Rupees two thousand) to be deposited within one month from today by the plaintiff in the Court for being paid to the contesting defendants who had suffered a lot due to the long period spent in Misc. Case, Misc. Appeal and Civil revision.