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ALLAHABAD HIGH COURT
WEIR, J.
Govind Prasad - Appellant
Versus
Har Kishen & Ors. - Respondents
Decided On : 20-04-1928
JUDGMENT
Weir, J. - This is an application by the plaintiff in a civil suit to review an order of the Small Cause Court Judge of Meerut dismissing the plaintiff's suit. The facts are these: The plaintiff, who is the applicant in these proceedings, brought a suit against the defendants, who are the respondents in these proceedings, on 20th May 1927. That suit was dismissed under Order 9, Rule 3, in consequence of neither party having appeared when the suit was called for hearing. The plaintiff applied to the learned Judge on 3rd September 1927, to have the suit restored, and the learned Judge dismissed that application. The plaintiff then brought a new suit upon the same cause of action on 17th October 1927. In that suit the learned Judge has passed the following order:
The application for restoration was dismissed. The present suit is not maintainable. Dismissed with costs.
2. In my opinion the learned Judge was clearly wrong in holding that the plaintiff was not entitled to bring a second suit, when an application to restore his first suit had been dismissed. Two authorities have been cited to me, namely, Daya Shankar v. Raj Kumar [1917] 20 O.C. 66 and Bhudeo v. Baikunthi [1921] 63 I.C. 239. I entirely agree with the leaned Judge who decided both those cases, and I, therefore, set aside the order of the Small Cause Court Judge and direct him to proceed with the trial of the suit No. 6390 of 1927.
3. Application allowed. Costs will be costs of the case.
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