(Firm) Ram Chandra-Faraya Lal vs Bhaia Dharman Sahi

Fazl Ali, J.—The suit in connexion with which this application has been made was instituted by the petitioner on 13th August 1934, for recovery of a certain sum of money from the defendant on the basis of a chitta said to have been executed by the latter. From the order-sheet it appears that the defendant took more than one adjournment in order to file a written statement and on several subsequent dates also he applied for time though the plaintiff was prepared to go on with the case. On 13th June 1935, the plaintiff filed hazri, but the defendant again filed a petition for time. Sometime later the case was called out, but as neither party responded to the call the case was dismissed for default. The plaintiff appeared before the Court soon after the order of dismissal had been passed and gave an explanation for his absence. On 15th June 1935 he filed a regular petition under Order 9, Rule 4, asking the Court to restore the case, but the learned Munsif dismissed the application on 27th July 1935. The learned Munsif in the order by which he has disposed of the application does not find that the account given by the plaintiff was incorrect, but he simply states that the plaintiff should have informed him before he left the Court. On a reference to the written statement it appears that the defendant admitted the execution of the hat-chitta but pleaded that he had executed it under undue influence and pressure and asked the transaction to be re-opened. In such circumstances the onus was clearly on the defendant to prove that the chitta could not be given effect to. The learned Munsif has overlooked this fact and he has also overlooked the fact that Order 9, Rule 3 is not obligatory but merely gives the Court a discretion to make an order in suitable circumstances that the suit be dismissed. In my opinion this is a case in which the Court below has exercised its jurisdiction with material irregularity and its order must, therefore, be set aside and the case restored. The learned Munsif will now proceed to dispose of the case according to law.