IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION U/A 227 NO. gggG OF 2009 PETITIONER : $ / / Mewa Lal, aged about 35 years, PLAINTIFF S/O Govind, Caste— Dewangan, Y9 R/O Choriya, Tahsil— Champa, District— Janjgir—Champa, (C.G.) VERSUS ESPONDENTS: (1) Bahadur, aged about 60 years, S/O /, DEFENDANT Ghasiram Sahu, R/O Choriya, Tahsil- Champa, District- Janjgir—Champa, (C.G.) State of Chhattisgarh, through Collector, District- Janjgir—Champa, (c.G.) WRIT PETITION U/A 227 OF THE CONSITITUTION OF INDIA R HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (227) No, 2860 of 2009 (w PETITIONER : Mewa Lal Versus RESPONDENTS : Bahadur & another WRIT PF, i l I {ON UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Mr. N.K. Agarwal, J.) Present : Smt. Indira Tripathi, Advocate for the petitioner. Shri Rakesh Dubey, Advocate for respondent No. 1. Shri GD Waswani, Govt. Advocate for State/respondent No.2. ORAL ORDER (Passed on 28.01.2011) 1. Application for withdrawal of petition filed by the petitioner on 05.07.2010 is aismissed as withdrawn. The instant petition is directed against the order dated 06.04.2009, passed by the District Judge, Janjgir Champa, in Misc. Civil Appeal No. 12/08, whereby the petitioner’s appeal was dismissed attirming the order passed by the trial court on 03.07.2008 by which the petitioner’s application filed under Order 9 Rule 9 of CPC was dismissed. 3. The plaintiff instituted a suit against the respondent. The case was fixed for evidence on 21 09,2007. On that date, as the petitioner as well as his counsel were absent, the trial court dismissed the suit for n01! app€arance. 4. The petitioner/plaintiff preferred an application under Order 9 Rule 9 of CPC for, restoration of the suit on 04.12.2007 along with an application for condonation of delay in tiling the application under . Order-’9 Rule 9 of CPC which was barred by 43 days, inter-alia on the grouhd that the petitioner was unable to attend the court due to / his engagement in some domestic work and dug to tha r witnesses also could not present in the court, He intimated his counsel on telephone to get adjournment but as the counsel was busy in some other court, prayer for adjournment could not be made and the case was dismissed. Immediately on receipt of information regarding dismissal of the suit application has been filed by him and therefore, delay deserves to be condoned. The grounds taken by the petitioner/plaintiff appears to be genuine and sumcient for his non appearance and in the considered opinion of this court, both the courts i.e. trial court as well as the first appellate court have failed to exercise their jurisdiction vested in them in not allowing the petitioner’s application which resulted in miscarriage of justice inasmuch as it will bar the plaintiff to file fresh suit on the same cause of action. Therefore, delay in filing application under Order 9 Rule 9 of CPO is condoned. Looking to the fact that matter is pending since long, application under Order 9 Rule 9 is also allowed. The trial court shall restore the suit to its original number and shall decide the suit expeditiously. The petitioner shall appear along with his witnesses and the trial court shall proceed to record the evidence of petitioner and to decide the matter on its own merits in accordance with law. i\ l No order asto costs. Sci/— N-K-Agarwal Judge Sdm e