SHRI JAGDEO MAHTA Vs. RAJEN DAS AND ORS.

JUDGEMENT

(1.) THIS revision under Section 115 of the Code of Civil Procedure is directed against an order dated 22.6.81 passed by the learned Munsiff No. 2 at Gauhati in Miscellaneous (J) case No. 1 of 1981, arising out of Title Suit No. 4 of 1980.

(2.) THE opposite party instituted a Title Suit, the subject (sic) of which is a valuable land in the city of Gauhati. The (sic) was posted for hearing on 19.12.80. "Haziras" or the attendance of both the parties were duly filed. However found absent and (sic) suit was dismissed for default on 19.12.80. The Plaintiff (sic)prmal situation cropped up in and around the Court predi(sic) on 19.12.80. The Plaintiff field an application for restoration of the suit stating that an (sic)mal situation cropped up in and around the court predi(sic) on 19.12.80 which compelled him to flee away from the Court and as such he could not be present in the Court when the suit was called for hearing. The Plaintiff filed the application for restoration under Order 9, Rule 9 of the Code of Civil Procedure. The Plaintiff examined himself and also examined an Advocate and proved that on 19.12.80 as 10 -35 a serious situation was created for which Central Reserve Police Force had to be called. They used tear gas to disperse some Satyagrah is in connection with agitation on the Foreigners' issue Appearance of the CRPEV and action taken resulted in people running helter -skelter for shelter. Under such circumstances the Plaintiff had to leave the Court compound and he was sure that under the prevailing circumstances Court would not function and it would not function and it would not be possible to take up the hearing of the suit. In fact for personal safety, the Plaintiff went home. Now what was the position as stated by the Defendant. He filed his 'Hazira' but he was found absent on call of course he does not admit of such a tense situation on that day yet what he stated was significant. He admitted that he left the Court the Defendant had the impression, for whomsoever reasons that the Court would not function on that day.

(3.) AGAINST the impugned order this revision has been preferred, it is not disputed at the bar that oh the facts and in the Circumstances of the case there: was sufficient ground for restoration of the suit. However, learned Counsel for the Petitioner' Submits that the Munsiff had no jurisdiction to restore the suit under Order 9, Rule 9 of "the Code" because both the parties were absent and the dismissal was under Order 9, Rule 3 of "the Code". At the same time counsel for the Petitioner submits that when a suit is dismissed under Order 9, Rule 3 it can be revived under Order 9, Rule 4 of "the Code". A mistake 'n quoting a wrong provision of the Code does not make an Order illegal, The crucial question should be whether the Court had jurisdiction to restore the suit to file. The Court had Jurisdiction to restore the suit under Order 9 of the Code of Civil Procedure. That apart, it had inherent power, even where the provisions of Order 9 were not applicable to restore a suit to file to uphold the cause of justice. This position is also not disputed by learned Counsel for the Petitioner. No other point has been urged other than the one I have just alluded.