UNION OF INDIA Vs. RAMA ENGINEERING WORKS

JUDGEMENT

(1.) THIS application arises out of an order passed by the learned Subordinate Judge setting aside the order of dismissal passed in Money Suit No. 22/14 of 1969/70 and restoring the suit to its original file.

(2.) THE case of the plaintiff-opposite party was that hajri was filed on 12-1-71 but his advocate, Shri Janeshwar Jha, had left for his home in the previous night without informing the opposite party or his Karpardaz. THE opposite party attempted to engage another lawyer but before this could be done, the suit was called on and was dismissed. According to him 12-1-71 was the date fixed for pairwi only and not for hearing of the suit. An application under Order 9, Rule 9, Code of Civil Procedure, was filed by the opposite party which was allowed and the suit Was restored to its original file as stated above. THE defendant has come up to this Court in revision.

(3.) ADMITTEDLY, there is no finding of "sufficient cause" as required by order 9, Rule 9, Code of Civil Procedure. It seems to me that unless the Court below came to the conclusion that "there was sufficient cause for non-appearance when the suit was called on for bearing," no order setting aside the dismissal could be passed. I am fortified in this view of mine by a large number of decisions of this Court and of the other High Courts vide Surendra Kumar Singh v. Mukund Lal Sahu, AIR 1949 Pat 68, Haridas Mukherjee v. Bejoy Krishna Das, 34 Cal WN 222 = (AIR 1930 Cal 387), Surujmal Keshan v. Baliram Prosad Shah, (1944) 48 Cal WN 415 and Debendra Nath Dutt v. Satyabala Dassi, 54 Cal WN 110 = (AIR 1950 Cal 217). All these decisions lay down that an application under Order 9, Rule 9 or 13, Code of Civil Procedure, cannot be allowed under the inherent powers of the Court. It was also laid down by the Full Bench of this Court in Doma Choudhary v. Ram Naresh Lal, AIR 1959 Pat 121: