VAISHNAV DHARMIK PANCHAYAT Vs. SHANKAR LAL

JUDGEMENT

(1.) THIS is a revision filed under Section 115 of CPC by the plaintiff against the order, dated 16-7-2002, passed by learned Additional District Judge, Sardarpur, District Dhar in Miscellaneous Civil Appeal No. 18 of 2002, which in turn arises out of M. J. C. No. 30 of 1998, decided by Civil Judge, Class I, Sardarpur, on 12-9-2001.

(2.) PLAINTIFFS suit was dismissed in default. He, therefore, applied for its restoration. It was dismissed. In appeal, the dismissal was upheld and hence, this revision.

(3.) I am inclined to allow the revision and set aside the order of dismissal, dated 4-124996, passed in Civil Suit No. 42-A of 1995. This I do in the light of law laid down by the Supreme Court in the cases of (1993) 3 SCG 256 and AIR 1998 SC 258. It was a case where the plaintiff was not noticed before the suit was dismissed in default. The dismissal of suit was in the absence of a lawyer. These two authorities of the Supreme Court does hold that notice to plaintiff should have been given prior to proceeding for dismissal of suit. Even otherwise, in my opinion, the cause shown by the plaintiff illness should have been held to be a good cause for the purpose of restoration of the suit. The imposition of cost would have met the interest of justice. The Court should always take into consideration the subtle observations of Supreme Court rendered by the Vivian Bose, J. , in one of leading case of Supreme Court reported in Sangram Sing v. Election Tribunal, AIR 1955 SC 425. This is what an eminent Judge had ruled tor observations by the Courts while dealing with the issue relating to cases arising out of Order 9 of CPC:-