Ramdeo Singh vs Kamakhya Narain Singh and Others

Ashwini Kumar Sinha, J.—This is plaintiff-petitioner''s application against order dated the 5th July, 1980. It seems that the application has been filed by the plaintiff-petitioner u/s 151 read with Order 9, Rule 4 of the Civil P. C. (hereinafter to be referred as the Code).

The plaintiff-petitioner has brought the suit for recovery of Rs. 13,000/-against the opposite party which has been numbered as Money Suit No. 46 of 1976. The plaintiff-petitioner''s case is that he mentioned about his daughter''s marriage to opposite party No. 2, and he was informed that he had a son of marriageable age, and thereupon the plaintiff petitioner agreed to pay Rs. 13,000/-cash to defendant No. 1 (opposite party No. 1) for the marriage, and, in fact, the plaintiff-petitioner paid that amount, and Tilak was performed. Later on, according to the plaintiff-petitioner, the petitioner realised that it was not proper now to marry his daughter after giving dowry, and he felt repented and hence he went to defendant No. 1 (opposite party No. 1) and informed that it was not possible to marry his daughter after giving dowry and he demanded the amount paid to defendant No. 1. According to the petitioner he also mentioned that unless defendant No. 1 returned the money, the petitioner would not marry his daughter with opposite party No. 2. The amount was not returned nor the marriage was performed.

It seems one Bachi Devi (defendant No. 3 (a) ) in the original suit died on 22-2-1979. Thereafter the plaintiff filed two petition -- one dated 23-2-1979 and another dated 6-4-1979. By petition dated 22-3-1979 the petitioner (plaintiff) just informed the court about the death of aforesaid Bachi Devi (defendant No. 3 (a)), and the petitioner wanted to find out the date of death and the name of her legal heirs. The petition dated 6-4-1979 filed by the plaintiff-petitioner was the application for substitution of the heirs and legal representative of aforesaid Bachi Devi (defendant No. 3 (a)). On the application for substitution filed by the plaintiff-petitioner the court fixed 19-5-1979 as the date for hearing of the substitution matter.

It is not disputed by the learned counsel appearing for the opposite party that 19-5-1979 was the date fixed for hearing of the substitution matter, and it was not the date for hearing of the suit. On 19-5-1979 the petitioner-plaintiff filed the Hajiri; but no step was taken on behalf of the defendant-opposite party, It is desirable to quote the relevant line from the order dated 19-5-1979.

"Case called out for hearing on the petitions dated 22-3-79 and 6-4-79 filed on behalf of the plaintiff. But inspite of repeated calls none responded''''.

The order dated 19-5-1979 has been annexed in the revisional application. Though as quoted above the court itself says that the case was called out for hearing on the petition dated 22-3-1979 and 6-4-1979, the court held the suit to be not maintainable and dismissed the suit. Thereafter the petitioner-plaintiff filed an application u/s 151 read with Order 9, Rule 4 of the Code for restoring the suit. It was registered as Miscellaneous Case No. 11 of 1979 and by the impugned order the court has held that the application filed by the petitioner-plaintiff was not maintainable and dismissed the same.

From the facts stated above it is abundantly clear that 19-5-1979 was not the date fixed for hearing of the suit. In fact this was the date for hearing of the substitution petition. On that date the court should have disposed of the substitution matter and committed a mistake in disposing of the suit holding it to be not maintainable, even though the defendant-opposite party was not present in the court, and even though the defendant-opposite party had neither taken it as a preliminary point. It is surprising that the court totally forgot to dispose of the substitution application, and it seems the substitution petition filed by the petitioner-plaintiff was just kept on the record. It was the duty of the court to dispose of the substitution application before the court disposed of the suit. In fact the suit should not have been disposed of, as the substitution petition was yet to be disposed of.

In my opinion, in the circumstances of the case, as it was the mistake of the court to take up the suit and dispose it of on a date not fixed for hearing of the suit, the application filed by the petitioner u/s 151 of the Code was maintainable and the court had inherent power u/s 151 of the Code to restore the suit to the file of such an application having been filed by the petitioner-plaintiff. On the facts and in the circumstances of the case I hold that Order 9 of the Code had no application. On 19-5-1979 the only matter which was to be disposed of was the substitution matter and not for hearing of the suit and hence neither under Order 9 of the Code nor Order 17 of the Code applied to the instant case.

In the result, this application is allowed and the impugned order is set aside. The trial court will now proceed firstly to dispose of the substitution petition and after disposing the substitution petition will proceed with the suit from the stage as it was on 19th May, 1979 before the court passed the order holding the suit to be not maintainable. In the circumstances of the case there will be no order as to costs.