1987 Supreme(MP) 742

IN THE HIGH COURT OF MADHYA PRADESH
P.D. Mulye, J.
F. Kesri Machinery Mart - Applicant
Vs.
Bherulal - Respondent
Cr. No. 453 of 1983 (I)
Decided On : 21-09-1987

Headnote:(1) Civil Procedure Code, 1908 – O. 9, R. 3 – plaintiff absent on first hearing of small cause suit – dismissal of suit in default of appearance should not be ordered.

       (2) Civil Procedure Code, 1908 – O. 17, R. 1 – plaintiff absent on first hearing but duly represented through counsel – case may be adjourned on cost.

        Short Note

       1. The plaintiff filed the present suit for recovery of Rs. 510/ – . Notice of the next date of hearing for final disposal was issued to the respondent – defendant for 17 – 1 – 83. On that date the counsel for the petitioner as also the counsel for the respondent were present. The learned lower Court, it appears, waited for the plaintiff's appearance till 5 p.m. on that date. But as the plaintiff did not appear in person, the suit was dismissed in default of appearance of the plaintiff. Being aggrieved, the petitioner – plaintiff has filed this revision.

       2. Held : After hearing the learned counsel and after going through the record I am of opinion that when the plaintiff's counsel was present and had sought for time, the learned lower Court should not have been so harsh and technical in dismissing the suit, especially when the defendant himself had not filed any written statement though he was served and represented by a counsel. Of course, the plaintiff ought to have remained present on that date. Therefore, when the plaintiff's counsel had sought for time, the learned lower Court could adjourn the case to a short date by awarding cost.

       3. In these circumstances, I am of opinion that in the interest of justice, the impugned order dismissing the plaintiff's suit has to be set aside. But for the laches of the plaintiff, cost should be saddled on him. Revision allowed.