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Ss.114, 115, O. IX,
Rr. 3, 4, O. XVII, Rr.2, 3 & XLVII, R.1---Pendency of application for restoration of suit dismissed for non-prosecution ---Non-appearance
of both the parties on adjourned date of hearing fixed forapplicant's
evidence---dismissal of
such application by Trial Court for non-prosecution and
non-production of evidence---Application for restoration of such dismissed application filed on the
same day, which was dismissed by Trial Court for not being maintainable---Applicant's plea that his
application for restoration of such dismissed application was maintainable
under O.IX, R.4, C.P.C. as adjourned date of hearing had not been granted
on previous date at his request---Respondent's plea that word
"or" as used in O.XVII, R.2, C.P.C. would amount to
"and" empowering court to dismiss suit on grounds of non-prosecution and non-production of evidence simultaneously, thus,
impugned order was valid---Validity--While exercising powers under
O.XVII, R.3, C.P.C. record must show that preceding date had been
obtained by defaulting party, otherwise his right to lead evidence could
not be closed---Power of court to "make such other order as it
thinks fit" would relate to a case in which some material in for m of evidence was available on record---In absence of
plaintiff and any evidence on record, provisions of O.XVII, R.3, C.P.C.
would not apply, rather R.2 thereof would be attracted and must be
applied by court---Record showed that present case had not been adjourned
at applicant's request on previous date---Parties ought to be provided
adequate opportunity in order to save their valuable rights for being trampled on technical grounds---Applicant had
rightly made application for restoration under O.IX, C.P.C.---Trial Court had passed
impugned order by applying wrong provisions of law, thus, committed an
illegality apparent on face of record, which could be corrected in
exercise of power provided under O.XLVII, R.1, C.P.C.---High Court set
aside impugned order and directed Trial Court to decide such application
on merits within specified time.
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