BISHNUPRIYA RATH Vs. PRESIDENT OF BHANJANAGAR COLLEGE CHATRAPUR

JUDGEMENT

(1.) In this revision the petitioner who is plaintiff in T. S. No. 74 of 1969 of the Court of Munsif Bhanjanagar has challenged the order passed by the learned Subordinate Judge, Aska in Misc. Appeal No. 9 of 1978 confirming the order passed by the Munsif, Bhanjanagar rejecting the petition under O.9. R.9 of the Civil P. C. (hereinafter referred to as the 'Code').

(2.) The facts in brief may be stated. Title Suit No. 31 of 1970 instituted by the petitioner against the opposite parties was posted for hearing on 16-12-1976. On that day a petition for adjournment was filed on the ground that the petitioner as also her son, Debi Prasad, who was looking after the suit, were lying ill and were unable to appear in the suit for the purpose of hearing. The time petition was rejected and later the suit was dismissed for default. The petitioner filed a petition under O.9, R.9 of the Code which was registered as M. J. C. No. 1 of 1977. In the said petition it was stated that on account of illness the petitioner, as well as, her son Debi Prasad could not appear and as there was sufficient cause for non-appearance, the suit should be restored. The petition was resisted by the opposite parties on the grounds that neither the petitioner nor her son, Debi Prasad was ill and in the absence of sufficient cause for non-appearance the suit could not be restored. After hearing both parties the learned Munsif refused to restore the suit because the petition under O.9, R.9 of the Code was not presented according to law by the petitioner and sufficient cause was not shown for her non-appearance. On appeal the learned Subordinate Judge, Aska confirmed the aforesaid findings and further held that the appeal was barred by limitation.

(3.) The following points arise for consideration :