- (1.) This revisional application is directed against Order No. 295 dated 20th November, 2009 passed by the learned Civil Judge (Junior Division), 4th Court, Howrah in Title Suit No. 130 of 1978. By the order impugned the learned Court below rejected defendant/petitioners' application under Section 151 of the Code of Civil Procedure for recalling of an Order dated 17th December, 2008, a date which was fixed for cross-examination of P.W.1 and for filing of show cause by the defendant. It may be mentioned that on 24th November, 2008, the defendant did not take any step for which he was asked to file a show cause. He was required to file a show cause on 17th December, 2008. In the petition for recalling the learned Advocate appearing for the defendant submitted that he waited in the Court on the relevant date for a considerable period of time as the Court did not sit in time. As the Court did not sit in time he left the Court and as such he could not file the show cause and in his absence the learned Court below closed the evidence of P.W.1.
(2.) From the order impugned it appears that the statement of the defendant that court did not sit in time, whether it is true or false, cannot be verified at this juncture but this Court is of the view on such ground alone the Court should not have rejected the application for recalling filed under Section 151 of the Code of Civil Procedure.
(3.) It is true that the conduct of the defendant cannot be appreciated but ultimate sufferer will be the party in a proceeding who cannot be pushed to penalisation for the fault of his learned Advocate.;