SHANKAR PRASAD PANDEY Vs. BHANUMATI TOPPO

JUDGEMENT

(1.) This revision is directed against the order of the Additional District Judge, Sambalpur, in Miscellaneous Appeal No.73/5 of 1981/82 restoring Title Suit No. 14 of 1980 which was dismissed for default. The suit in question was one for a declaration that the defendant is not entitled to evict or dispossess the plaintiff from the suit house in Execution Case No.1 of 1975 and for injunction against the defendant. The Execution Case No.1 of 1975 arose out of a decree in House Rent Control Case No.46 of 1972. Though for the purpose of deciding this revision, it is not necessary to look to the history of the litigation, for mere understanding of this case, the short facts may be narrated hereunder.

(2.) The present petitioner who is the landlord filed an application for eviction of the tenant one Miss P. Tigga bearing H.R.C. Case No.46 of 1972 on the ground that the tenant had sublet the house in contravention of the terms of the agreement and further the landlord required the house for his own use. This eviction proceeding was dismissed by the House Rent Controller. On appeal being filed by the landlord in H.R.C. Appeal No.2 of 1974, the appellate authority allowed the appeal and passed an order of eviction. The tenant approached the High Court in O.J. C. No. 1179 of 1974 and the High Court dismissed the writ petition by order dt. 19-10-1976, but permitted the tenant to remain in the house till 31-3-1977 and it was directed that she should vacate the house on or before that date. The tenant filed a memo on 11-4-1977 in the executing Court intimating the fact that she had vacated the house on 1-4-1977, but one Haldhar Toppo filed a petition under S.47 read with O.21, R.58 of the Civil P. C. before the executing Court contending that he was a tenant after 1-4-1977 and could not be evicted in the execution proceeding. This was dismissed by the executing Court as well as by the appellate Court. Thereafter, his mother filed a petition under S.47, read with O.21, R. 58 of the Civil P.C. on the self-same allegations as her son praying that she should be allowed to continue as a tenant. This misc. case was dismissed and an appeal against the same was also dismissed. A further revision was carried to the High Court which was dismissed as withdrawn by order dt. 19-2-1980. Thereafter, the mother filed the present suit (Title Suit No. 14 of 1980) for a declaration, as aforesaid. She also filed an application for interim injunction which was registered as Misc. Case No. 36 of 1980. The trial Court dismissed the prayer for interim injunction, but on appeal, the District Judge granted interim injunction to the plaintiff. The present petitioner who is the defendant in the suit filed a revision against the said order of the District Judge, but the High Court directed to dispose of the suit before summer vacation. Thus, while the suit was fixed to 2-4-1981 for hearing, the plaintiff filed a petition that both she herself and her advocate were suffering and, therefore, the matter should be adjourned. This application was rejected and since none appeared for the plaintiff, the suit was dismissed for default. We are concerned with this order of dismissal in this revision.

(3.) The plaintiff thereafter filed an application under O.9, R.9, of Civil P.C. which was registered as Misc. Case No.64 of 1981, praying to set aside the order of dismissal on the ground that she was ill from 31-3-1981 to 5-4-1981 and that she was under the treatment of a Kaviraj. A certificate from the said Kaviraj under whom she was being treated was also filed along with the petition. The present petitioner who was the defendant in the said suit filed objection to the same. The trial Court dismissed the application by its order dt.23-10-1981. The plaintiff-opposite party thereafter filed an appeal which was registered as Miscellaneous Appeal No. 73/5 of 1981/82. The learned Additional District Judge by his order dt. 27th March 1982, allowed the appeal and restored the suit. Hence the present revision.