ORDER
B.K. Roy, J.
1. The petitioners assail validity of the order dated 12th August, 1988 passed by the Additional Munsif, Buxar, in Misc. Case No, 18 of 1986 rejecting their application filed to review the order dated 28-7-86 by which their prayer to restore back Misc. Case No. 5 of 1985 filed by them for restoration of their title Suit No. 16 of 1979 which was dismissed for default on 30th August, 1985, was rejected.
2. The relevant facts are in narrow compass. 30-8-1985 was the date fixed for filing the written statement of the defendants-opposite parties. As the Plaintiff No. 1-Petitioner No, 1 fell ill and other plaintiffs do not live in the village rather mostly reside out station in connection with their livelihood, pairvi could not be done on 30-8-1985. The suit, however, was dismissed for non-prosecution. On 21-9-1985 the petitioners filed an application which was registered as Misc. Case No. 5 of 1985 for restoration of the suit, The petitioners filed a medical certificate (Marked Ext. I) which described the ailment as acute bacillary dysentry. This certificate was proved by AW 2 a formal witness. The petitioner No. 1 examined himself as AW 1 and stated of his, illness in examination in chief. In his cross-examination he also talked of pain in his abdoment. Misc. Case No. 5 of 1985 was dismissed by order dated 28th July, 1986, a photo copy of certified copy of which, has been appended as Annexure-1 stating following reason (i) the petitioners had left pairvies since four dates before 30-8-85 and in this backdrop the plea of not attending the court does not seem Justifiable, (ii) The statement of the petitioners is not supported by the certificate, (iii) Even though the suit was dismissed on 30-8-1985 the application was filed on 7-8-1985 whereas the vakalatnama and affidavit bear 21-9-1985. From the Court’s seal the date is not clear. The petitioners sought review of the aforementioned order on two grounds : (i) since the suit itself was not posted for hearing it could not be dismissed under Order IX, Rule 3 of the Code of Civil Procedure, (ii) the reason given for disbelieving the case of the illness of the petitioner No. 1 is not correct as the illness was supported by the certificate. The impugned order mentions following reasons for refusing to grant review: (i) the petition in question though mentions 21-9-1985 as its date, the seal of the Court on it, is not clear. From the ‘Patrawali’ it appears that it was not filed on 7-10-1985. Thus, it was filed beyond 30 days and barred by limitation, (ii) there appears contradiction in regard to the illness as stated by the witness and what has been stated in the cartificate of the doctor.
3. In the last sentence of paragraph-23 of this civil revision application the petitioners have stated as follows:
So far the point of limitation is concerned it is submitted that the original suit dismissed on 30-8-85 and miscellaneous application along with affidavit, vakalatnama was filed on 21-9-85 and there is seal of the court also on the sheet of the paper this shows that the miscellaneous application was filed in time.
In the counter affidavit filed by the opposite party the aforementioned statement has not been denied either directly or even indirectly.
4. Mr. Jagadish Pd. No. 2, learned Counsel appearing for the petitioners, submitted as follows: It was the duty of the Court to find out the date as mentioned in its seal if it was not clear by taking aid of an expert, which has resulted into failure of justice, (ii) the doctor in his certificate (which was marked as Annexure-1) had stated the illness of the petitioner No. I as acute bacillary dysentry which fully proved his illness and corroborated his statement in the cross-examination that there wag pain in his abdomen. The suit itself not being ripe for hearing and nothing was required to be done by the petitioners, there were apparent errors and the order rejecting Misc. Case No. 5 of 1985 should have been reviewed.
5. Mr. Angad Ojha, learned Counsel appearing for the opposite parties, submitted as follows : (i) the petitioners have illegally filed review petition which was not maintainable, (ii) the petition in question was filed on 7-10-1985 and not on 21-9-1985 as alleged by the petitioners and accordingly correctly dismissed on account of limitation, (iii) it is, however, a fact that there was no contradication in the pleading, the evidence and the certificate concerning illness of the petitioner No. 1.
6. Mr. Ratan Kumar, the learned Counsel for the minors, supported the impugned order.
7. Paragraphs-16, 17, 18 and 19 of this Civil Revision application, to which no reply has been given in the counter-affidavit, run as follows:
16. That on 30-8-85 the date was fixed for settlement of issue and for filing written statement by the defendant/opposite party.
17. That unfortunately on the aforesaid date the pairvee on behalf of the plaintiff/petitioner could not be done consequently the learned court below dismissed the suit for non-prosecution as provided under Order IX, Rule 3.
18. That the aforesaid order dismissing the suit was wholly illegal and without jurisdiction as the suit could be dismissed only under the aforesaid provision when it is posted for hearing as proceeded under Order XVIII, Rule 1 of the Code of Civil Procedure.
19. That as stated above the date was fixed only for filing written statement and settlement of issues so it was not fixed for hearing as provided under Order XVIII, Rule 1 of the Civil Procedure Code and as such the dismissal of the suit was without jurisdiction. There was nothing for the plaintiff/petitioners to make pairvee in the case and if he defaulted in filing attendance the court is proceeded from dismissing the suit.
8. Mr. Prasad is correct in submitting that a suit can be dismissed for default only when something is required to be done by a plaintiff However, the material are lacking before me as whether on 30-8-1985 anything was required to be done by the plaintiffs. In the earlier order it has been stated that the petition for restoration was filed on 7-8-85 which was nobody’s case. This was an apparent error as the suit itself was dismissed for default on 30th August, 1985 and there could not be any question of filing of an application in advance. However this is no assumption that the certified copy recites facts correctly. Since the petition was sought to be dismissed on account of limitation, in my view further clarification was required in regard to the date of the seal of the court. For recording a clear finding in this regard the Court below ought to have taken assistance of a magnifying glass or of the then Peshkar and/or of an expert. There was no evidence of the other party in this regard. The unrebutted statements made in paragraph No. 23 of the revision petition are also relevant.
9. In my view Mr. Ojha has very fairly, and correctly, has not supported the finding of the Court below that there appears to be contradiction in regard to the plea of illness of the petitioner No. 1 and the medical cartificate. A patient of an acute becillary dysentry necessarily complains of his abdomenal pain which was unfortunately lost sight of.
10. The important aspect that the suit itself was not ripe for hearing and as to whether any thing was required “to be done by the petitioners was not at all gone into. Since supporting materials are not before me I am unable to say anything except that if it was a fact that the suit was not ripe for hearing and nothing was required to be done by the petitioners then the dismissal of the suit was bad for non-prosecution and the Court below was required to correct its own errors under its inherent jurisdiction for which there was no period of 30 days. In this context I need to remind what has been laid down by our Apex Court in S. Nagaraj and Ors. v. State of Karnataka and Anr. JT 1993 (5) SC 27:
If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court.
* * * *
Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exception both statutorily arid judicially have been carved out to correct accidental mistake or miscarriage of justice
11. Thus, the contention that no review lies is overruled.
12. In the aforementioned view of the matter I am of the view that Justice requires remittance of the matter for fresh consideration of the court below.
13. Accordingly, I set aside the impugned order and remit back Misc. Case No. 13 of 1986 for its fresh decision in accordance with law by the Court below in the light of the abservation made by me.
14. This civil revision application is disposed of accordingly but in view of the fair stand taken by Mr. Ojha, I make no order as to costs.
