Devi Prasad Singh, J. - (1.) Heard Shri R. S. Pandey learned counsel for the petitioner and Shri U. S. Sahat holding brief of Shri H. S, Sahai.
(2.) The present writ petition has been filed against the impugned orders passed by the courts below in a proceeding under Order IX, Rule 9 of the Code of Civil Procedure.
(3.) The controversy in short is as under : (1) Petitioner has filed a suit for permanent Injunction relating to an abadi land which was registered as regular Suit No. 216 of 1977. During the proceedings in the trial court an application was moved by the plaintiff for appointment of survey commission on 20.2.1982, since there was an issue as to whether land in question was the part of Plot No. 823. On 1.4.1982, the said application for appointment of survey commission was rejected by the trial court. When the learned presiding officer of the trial court has asked the learned counsel for the plaintiff to argue the matter and adduce the evidence so that he may proceed further, the learned counsel informed that he has no instruction and he shows his willingness to withdraw the power. In view of statement given by the learned counsel for the plaintiff the learned trial court had dismissed the suit by ex parte order dated 1.4.1982. (2) An application under Order IX, Rule 9 of the Code of Civil Procedure was moved by the plaintiff/petitioner before the trial court, which was rejected by the impugned order dated 28.7.1982, certified copy of this order has been filed as Annexure-3 to the writ petition. The trial court had arrived to the conclusion that the plaintiff had deliberately not attended the Court on the said date and accordingly the application for restoration of the suit was not liable for acceptance on account of insufficient ground. (3) An appeal was preferred against the order of trial court dated 16.4.1982. Learned appellate court had also dismissed the appeal with a finding that the plaintiff was negligent to prosecute his case and the dismissal of suit in the absence of plaintiff or his counsel was rightly done by the trial court. The appellate court however, proceeded to held that he contention of appellant No. 1 (of the appeal) that he arrived in the Court campus after inordinate delay was seemed to be concocted fact. The plaintiff submission was that the Dharmraj Shukla was used to do pairvi of the suit who had gone to pilgrimage and on account of his absence no effective pairvi was done.;