CW-5581/09-Sanjay Kumar & Anr. Vs. Ram Rai & Ors. Judgment dt.16.7.09 1/3 S.B. CIVIL CIVIL MISC. APPEAL NO.540/1995 Kishore Vs. Ram Chandra & Ors. Date of order : 16th July, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. R.K. Thanvi for the appellant. Mr. M.C. Bhoot for the respondents. ------- 1. This appeal is directed against the order dated 6.3.1995 whereby the learned trial court rejected the application of the plaintiff for restoration of the suit dismissed in default of appearance on 19.8.1993. 2. The learned counsel for the appellant-plaintiff submits that the suit was for partition of the property and originally same was filed in District Court at Jodhpur from where the suit which was being tried in Court of learned ADJ No.3, Jodhpur and which Court held Camp Court at Phalodi upto 19.8.1993 when the regular Court was established there. On 9.4.1992 one Shri Radheshyam Chanda, Advocate of Phalodi appeared on behalf of Advocate for the plaintiff Mr. R.K. Thanvi, though he did not file any regular Vakalatnama on behalf of the plaintiff. On other subsequent date on 7.4.1993 and 7.5.1993, one Bhanwar Singh, Advocate also appeared as Proxy Counsel on behalf of the Advocate for the plaintiff before such Camp Court at Phalodi. He further submits that in the order sheet of 7.7.1993, it was duly noted by the learned trial court that the case properly falls within the jurisdiction CW-5581/09-Sanjay Kumar & Anr. Vs. Ram Rai & Ors. Judgment dt.16.7.09 2/3 for trial of learned Additional Chief Judicial Magistrate-cum-Civil Judge, Phalodi. However, instead of transferring the record to the said Court on 19.8.1993, the learned trial court of ADJ, Phalodi dismissed the said suit for default of appearance of the counsel. No notice was sent to the plaintiff for making any alternative arrangement of appearance of the said Court. He further submits that since no Vakalatnama is filed by these two advocates Mr. Radheshyam Chanda and Shri Bhanwar Singh on behalf of the plaintiff, therefore, for their non-appearance on a given date, the suit could not have been dismissed in default of appearance and upon the restoration of the application filed by the plaintiff under Order 9 Rule 4 C.P.C., the suit deserves to be restored by the learned trial court for trial in accordance with law. 3. The learned trial court in the impugned order dated 6.3.1995 has not assigned any cogent reasons for not restoring the suit. In the given facts and circumstances of the case, the learned trial court also appears to have escaped the fact that the order sheet dated 7.7.1993 was duly recorded with the suit was liable to be tried by the Court of learned Addl. Civil Judge but instead of transferring the record for the default of appearance of the proxy counsel, who was not even properly instructed and who had not filed Vakalatnama under Order 3 Rule 4 C.P.C. Thus, the suit was dismissed for want of appearance. In such circumstances, the learned trial court ought to have sent notice to the plaintiff for making proper arrangement for appearance of Advocate on his behalf. CW-5581/09-Sanjay Kumar & Anr. Vs. Ram Rai & Ors. Judgment dt.16.7.09 3/3 4. On considering the facts and circumstances of the case and submissions made at the Bar, this Court is of the opinion that the suit of the plaintiff deserves to be restored to its original number and position. 5. Accordingly, this appeal is allowed and the impugned order dated 6.3.1995 is set aside and the suit is restored to the learned trial court of ADJ, Phalodi for trial in accordance with law from the stage when it was dismissed for default of appearance. The parties are directed to appear before the learned trial court in the first instance on 17th August, 2009. A copy of this judgment may be sent to the parties as well as their counsels, who have appeared in the matter. [ DR. VINEET KOTHARI ], J. item No.7 babulal/