BIMBADHAR PATRA Vs. BHOBANI BEHERA

JUDGEMENT

(1.) The petitioner was the plaintiff in a suit which was dismissed on January 20, 1933, as the petitioner failed to attend the Court on that date. He subsequently applied under Order IX, Rule 9 for the restoration of the suit hut the learned Munsif held that he had failed to establish any sufficient cause for his absence and so he dismissed his application.

(2.) Now, the petitioner has suceeded in establishing and even the learned Munsif does not doubt it, that he had undergone a serious operation on January 14, 1933 and that being so he could not obviously have been in a fit condition to attend the Court on January 20. The simple question which the learned Munsif had before him to consider was whether the fact that he was not in a fit condition to attend the Court on account of the operation having been performed on January 14, did or did not constitute sufficient cause for his absence. He has, however, burked the whole question and proceeds to argue that there was no hurry for the operation and that when the petitioner waited so long he could wait for a week more. This is in fact not deciding the main question to be determined but offering a piece of advice to the petitioner without there being any material on the record to show the exact condition of the patient just before the operation. In my judgment the learned Munsif has approached the case from an entirely mistaken point of view and while professing to exercise the jurisdiction in the matter he has in fact not decided the very question which he had to decide. In my opinion there can be doubt on the facts established that there was sufficient cause for the petitioner not attending the Court.

(3.) In these circumstances I would allow this application, set aside the order of the Munsif and restore the suit, but on the condition which is agreed to by the petitioner, that he will pay within one month from today the sum of one gold mohur to the opposite party as his cost, failing which this application will stand dismissed. The amount will be deposited in the trial Court to the credit of the opposite party. The suit will be restored and the learned Munsif will proceed with it according to law.