' This revision is directed against the judgments and decrees dated 29-4-1977 and 10-2-1981 passed by the learned 1st Judge, Civil Judge Hyderabad and the learned Ist Additional District Judge, Hyderabad respectively in Suit No,16 of 1975 and Civil Appeal No,200 of 1977 respectively.
2. The brief facts leading to the filing of the above Revision are that the present applicant filed aforesaid suit for pre-emption against respondents 1 and 2. It may be observed that respondent No,2 is the real brother of applicant who had sold the suit property in favour of respondent No,1. It appears that the issues were framed on 3-1-1976. After that the case was adjourned for various reasons, namely, Presiding Officer was under transfer, at the request of the learned counsel for the defendant No,1, defendant No,2 and also at the request of the learned counsel for the plaintiff/present applicant. It appears that on 26-4-1977 the case was fixed for evidence of the plaintiff. It may be mentioned that prior to that the case was fixed on 22-3-1977 when the case was adjourned at the request of the advocate for the defendant No,1 for 26-4-1977. On the latter date the summons of the witnesses were received but none was present for the plaintiff and also for defendant No,2. The learned Civil Judge closed the side of the plaintiff and the defendant No,2 adjourned the case to 29-4-1977 for arguments. After that he passed the above judgment on the above date dismissing the applicant's suit on merits under Order 17, rule 3, C.P.C. On the basis of the material available on record. The applicant being aggrieved by the above judgment filed Civil Appeal No,200 of 1977, which was dismissed by the learned 1st Additional District Judge Hyderabad by his above judgment and decree dated 10-2-1981. The applicant being aggrieved by the above judgments/decrees has filed the present revision.
3. It may be observed that as per bailiffs report respondents 1 and 2 have been served but none is present though the case has been taken up for hearing second time at 12-00 noon. I have heard the learned counsel for the applicant. It appears that on 26-4-1977 there was curfew in Hyderabad.
The learned Civil Judge has dilated upon the above aspect in para. 7 of the judgment. It may be pertinent to reproduce the same which reads as follows:-- "The matter was fixed for the evidence of the parties but none of them cared to attend and lead evidence. Excepting the learned counsel for the defendant No,1, none of the parties or their counsel attended the Court. The parties at the most could have assigned the imposition of curfew in the City as a ground to justify their absence but in my humble opinion, this plea could have no force. Of course the city was running under Martial Law and curfew was imposed on the date of hearing, but on the other hand as per order of the Martial Law Authorities the curfew was being relaxed twice on the very date. Firstly from 5-30 a.m. To 10-30 a.m. And again from 2-30 p.m. To 5-30 p.m. During which the parties could easily attend the Court and adduce evidence. Though plaintiff had attended and responded the call at 9-30 a.m. But instead of leading evidence, he immediately left to bring his counsel and did not turn up to the closing hours of the Court i,e. 4-00 p.m. Even none of the parties cared to deposit the costs for summoning its witnesses. There was no intimation regarding the absence of the plaintiff or his learned counsel, as such the side of the plaintiff was closed. The defendant No,2 or his learned counsel also did not care to attend the Court and lead evidence. Consequently the side of the defendant No,2 was also closed for the purpose of evidence. The defendant No,1 was also not present but his learned counsel who was in attendance did not intend to lead evidence on behalf of the defendant No,1 mainly on the ground that the plaintiff could not lead any evidence to support the main issues of facts. The side of the defendant No,1 was also closed."
4. According to the above para. 7 of the judgment of the learned trial Court it is an admitted position that on the above date the Hyderabad city was under curfew and the curfew was relaxed twice during the day. It is also evident from the above quoted para. That the plaintiff had attended the Court early in the morning and had left the Court for bringing his advocate but he did not turn up thereafter up to 4-00 p.m. It may be stated that as per the above-quoted para. Curfew was relaxed second time from 2-30 to 5-30 p.m.
5. I am inclined to hold that keeping in view the state of the diary, which I had gone through, it was not proper on the part of the trial Court to have closed the side of the plaintiff and of defendant No,2 on a date when city was under curfew. It is evident from the Court diary that the plaintiff had not obtained many adjournments in the past for production of the evidence. The case was adjourned as pointed out hereinabove on various grounds. The learned Appellate Court in its judgment has not dilated upon this important aspect which goes to the root of the matter.
' I would, therefore, allow the above revision and set aside the two judgments/decrees and would remand the case to the learned trial Court with the direction to proceed from the stage at which the suit was when the order dated 26-4-1977 was passed for closing the side of the plaintiff and the defendant No,2. Both the plaintiff and the defendant No,2 would be given opportunity to produce evidence and thereafter the case may be decided in accordance with law. There will be no &der as to costs.