N.L.Ganguly - (1.) -This civil revision is directed against the order dated 23.1.1991 passed by the IVth Addl. District Judge, Gorakhpur by which the learned Judge rejected the application 4C filed by the defendant-revisionist for recalling the order dated 28.10.1989 passed by the court by which the court had been pleased to restore the original suit to its original number after recalling the order dated 29.8.1989.
(2.) THIS revision is listed for admission. The respondent has filed his appearance along with an application ami counter affidavit for vacating the interim stay order passed by the court. The rejoinder affidavit is also on record. The revision has not yet been admitted and I do not consider it necessary to call for the record of the court below at this stage. The learned counsel for the parties consented that revision be finally decided without record. The brief facts of the case is that a Civil Suit No. 339 of 1988 was filed in the court for a relief that the ornaments detailed in the plaint be sold and the amount that would be received after such sale be paid to the plaintiff-respondent for his dues. The suit was pending in the court of Ilnd Addl. Civil Judge, Gorakhpur. 29.8.1989 was fixed there in the suit. On 29.8.89, both the parties were not present. The suit was dismissed for absence of the parties. An application under Order IX, Rule 4 read with Section 151, C.P.C. was filed by the plaintiff for restoration of the suit to its original number after recalling the order dated 29.8.1989. The learned Civil Judge after hearing the parties allowed the application of the plaintiff and passed the order for restoration of the suit to its original number after recalling the order dated 29.8.1989 for dismissal. The impugned order is directed against the order of the court below refusing to set aside the order of restoration passed by the: court. The defendant-revisionist submitted that the plaintiff had full knowledge of the date fixed in the suit after transfer order in the suit. Revisionist further submitted that notice was put on the notice board showing the list of all cases transferred by the orders of the District Judge and a copy of the said list containing the suit numbers and party names of the transferred suit was sent to the Bar Association, Gorakhpur. It was also submitted that the provision of Rule 89A of General Rule (Civil) was complied with. It was submitted that the plaintiff had full knowledge of the date fixed in the suit and he absented on the date fixed after full information. It was also submitted that the application for restoration submitted under Order IX, Rule 4 read with Section 151, C.P.C. should have been decided after getting notice to the revisionist. The order passed by the court recalling the order dated 28.10.1989 was illegal and without notice to the revisionist. The application for restoration was submitted with sufficient delay and was barred by limitation. No application under Section 5 of the Limitation Act had been filed by the respondent.
(3.) THE learned counsel for the applicant in the present revision argued the point, mentioned in the above paragraphs. THE learned counsel for the applicant also submitted that a writ petition was also filed by the defendant in the High Court, which was pending. It was submitted that during pendency of the writ petition in the High Court against an order which was also challenged before the court below, a request was made to stay the consideration and disposal of the application submitted by the revisionist. A perusal of the order impugned shows that the court referred to the order-sheet dated 28.10.1989 in the suit which showed that the record of the suit was received after 31.5.1989 from the court of Ilnd Addl. Civil Judge. THE learned court: below found as a fact that after the transfer of the suit from the court of Ilnd Addl. Civil Judge, no notice or information was given to the plaintiff. He also found that according to Rule 89A of General Rules (Civil), it was also mandatory for the court to send the information to the parties about the transfer of the case. THE order-sheet of the suit nowhere mentioned that any information after the transfer of the suit was given to the plaintiff-respondent. No information about the transfer was given to the counsel for the plaintiff. THE court below recorded finding of fact that the record of the suit was received on 1.7.1989 after transfer from the court of IIIrd Addl. Civil Judge to Ilnd Addl. Civil Judge. THEre is no endorsement of the counsel for either parties in the order-sheet of the suit. THE: finding that no information after the transfer of the suit was given to the counsel for the respondent is a finding of fact and is not open to challenge in the present revision. The court also found that 1.5.1989 was the date fixed In the suit, the next date fixed was 8.7.1989. In the meantime on 1.7.1989, the suit had been transferred from the court of Illrd Addl. Civil Judge to Ilnd Addl. Civil Judge. 8.7.1989 and 9.7.1989 were holidays. On 10.7.1989, next date fixed was 28.7.1989. The defendant had moved application after transfer of the suit to the court of Ilnd Addl. Civil Judge dated 7.7.1989 and the revisionist defendant's counsel had made endorsement on the application that the plaintiff's counsel Sri P. M. Sarkar was not available in the city and the copy of the said application was filed tagged with the application by them. On 28.7.1989, an application dated 28.7.1989 was submitted for adjournment on which the plaintiffs counsel had noted no objection for adjournment. The argument of the revisionist that plaintiffs counsel had noticed that suit had been transferred from the court of Illrd Addl. Civil Judge to Ilnd Addl. Civil Judge was not accepted by the court below. The court below found as a fact that the suit was transferred and the plaintiff had no notice or information about the transfer of the suit. There was no information to the plaintiff. Rule 89A of the G.R. (Civil) was not complied with.;