x” IN THE HON'BLE HIGH COURT OF wHA‘ITisGARH AT mLAS . M.A.No. 32$ /2oo4 /Jagdish Prasad s/o Daduram. agea about x 34 years, R/o. V111 Gangapur, P S. (C.G.). Présent Address-R/o. Dwarikanagar Tah. Surajpur, Distt. Surguja (C.G.). VHRSUS 60 Fa. WJalnagar, Tah. Surajpur, Dlstt. surguja ‘a :5“; w 8w RESPOND¥T : /Balo Bai D/o Nansai, aged about 2'7 years W" ” R/O. Kaskela, P.S. Jainagar. Tah. Surajpur, Distt. Surg’uja (C.G.). MISC. APPEAL UNDER ORDER 43 RULE l OF CIVIL PROGEbURE CODE. /, ; HIGH COURT OF CHHATTISGARH AT BILASPUR MA. No. 319 OF 2004 MISC. APPEAL UNDER ORDER 43 RULE 1 OF CPC {83: Hon'ble Mr. N.K. AqarwaL J_.) Present : Shri JK Shashtri, Advocate for appeHant. Shri Atanu Ghosh, Advocate for respondent. ORAL ORDER (Passed on 27‘" day of January, 2010) With the consent of the parties, the matter is heard finally. The instant appeal is directed against the order dated 10.02.2004, passed by the llnd Additional District Judge, Surajpur, Surguja in Misc. Civil Suit No. 03/2003,_whereby and whereunder the application preferred by the applicant under Order 9 Rule 9 read with Section 151 of CPC has been dismissed. 2. The brief facts of the case are that. on 11.11.2003, the appellant's/plaintiff’s suit was dismissed for his non appearance. On the same date i.e. on 11.11.03, an application for restoration under Order 9 Rule 9 of CPC was filed on the ground that the plaintiff was on election duty on that date and therefore he could not appear before the court. The trial court dismissed the said application on the ground that the plaintiff has failed to file any certificate showing his absence due to election duty. Apgellant Jagdish Prasad Versus Respondent : Balo Bai @ Shri Shashtri, learned counsel appearing for the appeilant would submit that when on the same date Le. on 11.11.2003, the apptication has been med by the appettant, the trial court ought to have attowed the apptication as provision of Order 9 Rule 9 of CPC are not penal in nature. Per contra, Shri Ghosh, learned counsel appearing for the respondent would submit that the trial court has rightly dismissed the application preferred by the appellant as he failed to produce any document showing his absence due to election duty. l have heard the counsel appearing for the parties and perused the order impugned. Provisions of Order 9 Rule 9 of CPC are not penal in nature. On the same date the appellant filed the application for restoration of the suit. The cause of non appearance shown appears to be remained un—rebutted, therefore, it can be safely held that appellant has succeeded in showing sufficient cause of his non appearance on that day. ln view of above, in the considered opinion of this court, the trial court has erred in dismissing the application preferred by the appellant/plaintiff. The appeal is therefore allowed. The civil suit is restored to its original number. The parties are directed to remain present before the trial court on 08.03.2010 and the trial court shali decide the suit Sahu, 10. expeditiously. a // Record of trial court be sent forthwith. $dl— ‘ KSAQaMa‘ . N_ ‘ Judge