K. Lahiri, J.
1. (A) Whether a suit can be dismissed under Order 9, Rule 8 of
the Civil P. C. when it is called on for hearing at a time which is not the ordinary hour of sitting for the Court, without prior intimation td plaintiff about such hearing?
(B) Has the Court jurisdiction to exercise power under Order 9, Rule 8 of the Civil P. C. when the defendants had not been notified about the date of hearing of the suit by a transferee Court? These are the main questions posed by Mr. R. Ghosh, the learned counsel for the petitioner in this revision, apart from other points.
2. The petitioner instituted a title suit against the opposite parties for dissolution of the partnership business, rendition of accounts and claimed other reliefs in the Court of the Additional Subordinate Judge, Tripura at Agar-tala. The defendants appeared, filed their written statements and issues were framed. A commissioner was appointed and he was directed to take over possession and custody of the books of accounts, documents and papers relating to the partnership business for audit. In the meantime on creation of a new district, the Court of the subordinate Judge was established and the suit was transferred to the subordinate Judge at Udaipur. The transferee Court issued notice to the parties to appear before it on the 25th January, 1977. The plaintiff appeared but the defendants did not turn up and the transeferee Court isued for return of service fixing 10-2-1977 for necessary orders. On 10-2-1977 defendants 1 (a) to 1 (k), upon whom the notice had been served appeared but the notice issued upon the defendant No. 2 was returned unserved. Overlooking the fact that the defendant No. 2 did not receive any notice of transfer of the case the transferee Court fixed 8-3-1977 for final hearing, notwithstanding non-appearance of defendant No. 2. The learned Judge also did not issue any direction to the commissioner td produce the relevant materials lying in his custody. On 8-3-1977 the plaintiff filed an application praying for amendment of the plaint, the learned Judge rejected the same and directed the parties to get ready at once for final hearing whereupon the plaintiff filed an application for adjournment but the same was turned down. Thereafter the suit was called on for hearing at 1-15 P.M. and dismissed as the plaintiff did not turn up on call.
3. Refusal to allow amendment sought for by the petitioner appears, on the face of the records, to be viola-tive of the well-known principles of amendment of pleadings. Instead of burdening the judgment with the said principles I would only refer to the latest decision of the Supreme Court in Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484, wherein the principles governing amendment of plaint have been laid down by their Lordships. The impugned order of refusal is violative of the law laid down by the Supreme Court and cannot be allowed to stand. I entirely agree with the submissions made by Mr. R. Ghosh, counsel fdr the petitioner that the impugned order of the learned Judge refusing to amend the plaint must be reversed. As the petitioner is entitled to amend pleadings, on the facts and circumstances of the case, he was entitled to get necessary time to amend and consequently the learned Judge could not have dismissed the suit on that date. On this ground alone the impugned order is liable to be set aside.
4. The next contention of the petitioner that the suit was called at a time when it was not the ordinary hour of sitting for civil Courts and the plaintiff had no prior knowledge or information that the suit would be called on for hearing at that time, and the order of dismissal is without jurisdiction, has strong force behind it. Under the Civil Rules and Orders framed by Gauhati High Court, the ordi-nary working hours of sitting for all Civil Courts have been fixed. The recess period has been fixed in between 1 P.M. to 1-30 P.M. vide Rule 1 of 'the Rules and Orders'. The Rules have been made under the Civil P. C. and are binding on all Civil Courts and Officers subordinate to Gauhati High Court. As such it is indubitable that the suit was called on for hearing at a time when it was not the ordinary hours of sitting of Civil Courts. The plaintiffs had no prior notice that the suit would be called on for hearing at 1-15 P.M., the recess period of Civil Court. Under these circumstances I am constrained to hold that when the suit was called on for hearing at a time, when it was not the ordinary hours of sitting of the Court and when the plaintiff had no knowledge that the suit would be called during the recess period, the order
of dismissal of the suit at that hour of the day was absolutely invalid and without jurisdiction and the impugned order is liable to be set aside, to uphold the cause of justice.
5. The next contention of the learned counsel that the Court had no jurisdiction to fix 8-3-1977 for hearing when the defendant No. 2 had not been served with any notice, has strong force. A bare perusal of Order 9 Rule 8 shows that the defendant must know the date of hearing and only upon his appearance before the Court a date of hearing can be fixed. In the instant case it is indubitable that defendant No. 2 was not served with any notice as to the transfer of the case and fixation of the date of hearing. As such, the learned Judge could not have exercised his power under Order 9 Rule 8 of the C. P. C. on the facts and in the circumstances.
6. In the result, I set aside the impugned order, allow the petition, remit the case to the trial Court for due consideration of the application for amendment made by the plaintiff petitioner and on due disposal thereof the learned Judge shall proceed to hear and dispose of the suit in accordance with law. There will be no order as to costs.