VERMA, J. - (1.) THE appellant plaintiff has come up in this misc. appeal against the order dated 26. 2. 1997 passed by the District & Sessions Judge, Baran in Civil Case No. 36/96 Bank of India vs. Bhanwar Lal & Ors. , whereby the application filed by the Bank u/order 9 Rule 9 CPC for restoration of the suit had been dismissed.
(2.) THE Bank had filed a suit for recovery of the amount from the defendant respondent in the year 1992. On 4. 4. 1996, the case was fixed for plaintiff's evidence but because of strike of the advocates none of the advocate attended the court and hence, the case was dismissed in default. On 18. 4. 1996, the application under Order 9 Rule 9 CPC was filed for restoration of the suit, which application was opposed. Reply to the said application was filed on 26. 2. 1997 itself and the application for restoration was dismissed by the learned Sessions Judge on the same day. Being aggrieved, the bank has come up in this civil misc. appeal. The learned Sessions Judge while dismissing the appeal has observed that the strike of the advocates was continuing right from 8. 3. 1996 and it was not a sudden strike on 4. 4. 96 and this fact that the strike was continuing from 8. 3. 96 had not been mentioned in the application. Another fact which has been noticed by the learned District Judge is that the application itself was moved by the counsel Shri Yogeshwar Swaroop Bhatnagar who was the counsel in the main suit itself and for the reason that this very counsel had remained absent because of strike and it is noticed that the suit was dismissed because of the absence of this very advocate and on this very ground the learned District Judge had not considered it appropriate to restore the suit. After hearing both the counsel for the parties and in view of the facts as stated, I am of the opinion that it is a fit case where restoration application should have been allowed. Even though it is correct that the absence of the counsel because of strike cannot be termed to be a sufficient reason for restoration of the case, but in the present case, no blame can be put on the appellant. It would make hardly any difference if the application on behalf of the plaintiff is moved by the same counsel who was originally engaged or by some other counsel as the reasons for absent would remain the same. It is settled proposition that whenever application is moved by any counsel, it is assumed that such application has been moved on behalf and by the parties as the counsel is never a party in the case in person. It cannot be said that there was no sufficient reason for restoration of the case or that the appellant was not deligent in prosecuting the matter. The suit was filed in the year 1992 and was being prosecuted right upto 1996 when it was dismissed in default.
(3.) IN my opinion there was sufficient reason brought out by the appellant for restoration of the case and in such circumstances, the application moved under Order 9 Rule 9 CPC ought to have been allowed. In these circumstances, I allow this misc. appeal, set aside the order impugned and restore the suit to its original position. .;