NANIBALA DUTTA Vs. RUPMA DUTTA

JUDGEMENT

(1.) The petitioners as plaintiffs had filed Title Suit No. 66 of 1988 in the Court of the Assistant District Judge, Jorhat which was transferred to the Court of Munsiff No. 1, Jorhat. The suit was renumbered as T.S.No.95/93. The suit, inter alia, was for grant of injunction restraining the defendants from taking possession of the suit land mentioned in the plaint and also for a declaration of right, title and interest and confirmation of possession and otherwise disposing of the same. Written statement had been filed by the defendants and after the framing of the issues, two witnesses on behalf of the plaintiffs had been examined. One of the plaintiffs had also stepped in the witness box. On 18.1.94, the case was again fixed for the plaintiffs evidence. But none of the plaintiffs appeared alongwith their witnesses through their advocate was present. The advocate on behalf of the defendants was also present. In fact no steps were taken by the plaintiffs even to summon any witness. The suit was consequently dismissed on 18.1.94. An application U/O. 9, Rule 9 CPC was made for restoring the suit to file which was dismissed on 18.1.94. The plea taken was that Plaintiff No. 3 Shri Janardan Dutta was ill and therefore could not take any step to bring the witnesses. Medical certificate was also produced. After examining the evidence, the triajl Court, vide its order dated 1.9.94, restored the suit as according to the trial Court sufficient cause had been shown for not appearing on 18.1.94. The defendants filed appeal and the appeal has been allowed that in fact mo sufficient cause had been shown. It was also observed that since there were more than one plaintiffs, if plaintiff No. 3 could not appear, the other plaintiffs could have appeared. The appellate Court set aside the order of the trial Court vide its order dated 30.8.97. Hence the present revision petition.

(2.) Learned counsel for the respondent- defendants Shri TJ Mahanta states at the bar that his client had already taken away the brief from him quite some time ago and have not given any instructions. Nobody else has put in appearance on behalf of the defendants- respondents.

(3.) I have gone through the records of the case. I find that after the examination of two witnesses on behalf of the plaintiffs on earlier dates on the date fixed for hearing, i.e., on 18.1.94 the plaintiffs' witnesses were absent. However, their advocate was present. If no witnesses on behalf of the plaintiffs were present and some evidence on their behalf had already been led, in my view, the suit could not have been dismissed, at the most the evidence on behalf of the plaintiffs could be closed. Be that as it may, it was indeed the first occasion when the plaintiffs failed to produce their witness on the date fixed. Even a prayer was made to adjourn the matter by the learned counsel for the plaintiffs. If no steps had been taken to summon the witnesses the plaintiffs could have brought their own witnesses at their own responsibility. A medical certificate was filed that the plaintiff No. 3 fall ill. No doubt technically the appellate Court may be right, inasmuch as, the doctor was not produced but after all this was a case for setting aside the order of dismissal of the case and not really the main suit. The medical certificate coupled with the plaintiffs own statement, according to me, was sufficient to show that there was genuine and sufficient reason for not appearing on 18.1.94. If one of the plaintiffs had been looking after the case and that the other plaintiffs had not appeared on that day, that did not justify dismissal of the case when the counsel representing the plaintiffs was very much in the Court.