M.P. Mehrotra, J. - (1.) This petition under Article 226 of the Constitution of India arises out of the proceedings relating to a Civil Suit, It is not necessary to state the facts and controversies which were involved in the Original Suit No. 367 of 1980 which was pending in the court of the Munsif I, Rampur. However, the relevant brief facts may be noticed, 13-5-1981 was the date fixed for framing of issues. On the said date the case was called out and it was dismissed with costs by an order dated 13-5-1981, a true copy of which is Annexure 9 to the petition. The order is reproduced below:-" Case called. Sri A. R. Siddique Advocate Counsel for the plaintiff pleads that he has no instructions. This case yesterday came before me with an application on behalf of the defendant and it was opposed by the counsel for the plaintiff and as he was not ready case was adjourned for today. The learned counsel, therefore, cannot plead no instructions. There issues have to be framed on the pleadings of the parties but learned counsel for the plaintiff hesitates to cooperate with the Court. It is, therefore, futile to crown a sleeping pig. Since the case was adjourned on the request of learned counsel for plaintiff and not present also when he was asked to help the framing of issues he pleads for dismissal of the suit. I have no hesitation to accept his proposal. Suit is accordingly dismissed with costs."
(2.) Thereafter, an application was moved by the plaintiff-respondent No. 5 in this petition purporting to be under Order 9, Rule 9, C. P. C. The prayer was that the order dated 13-5-1981 dismissing the suit, be set aside and the suit be restored. The application was rejected by the trial court by its order dated 29-9-1981, a true copy of which is Annexure 10 to the petition. The plaintiff-respondent No. 5 felt aggrieved and filed an appeal against the said order and the same was allowed by the appellate court by the impugned order dated 3-8-1982, a true copy of which is Annexure 1 to the petition.
(3.) Feeling aggrieved against the aforesaid appellate order (Annexure 1 to the petition) the defendant has come up in the instant petition and in support thereof I have heard Sri R. P. Goyal.;