P.S. Safeer, J.
(1) This petition preferred under Section 115 of the Civil Procedure Code (hereinafter called 'the Code') invites attention to compelling facts.
(2) The petitioner instituted a suit for permanent injunction. While the suit was pending, he applied to the District Judge, Delhi, for transferring the suit to another Court of competent jurisdiction. The trial Court had recorded the evidence of one of the plaintiffs witnesses on the 19th of November, 1969, and had adjourned the suit for recording further evidence to the 18th of December, 1969. The following order was passed by the trial Court when the suit was taken up on the adjourned date :-
'counsel for the parties. No P. W. is present. It is stated that the plaintiff has moved a transfer application before the District Judge, Delhi, Adjournment is requested. Put up on 23rd January, 1970. sd/- xx Sub-Judges, 1st Class, Delhi.'
is clear that the trial Court referred the recording of evidence and adjourned the suit to 23rd January, 1970 without fixing the purpose for which the suit was to be taken up on that date. The order recorded on the 23rd of January, 1970, was :-
'PRESENT: Counsel for the parties. The counsel for the plaintiff states that transfer application has been moved before the learned District judge, Delhi, and the same is still pending. Prays for short adjournment. Put up on 31st January 1970, for further proceedings. Announced. sd/- xx 23-4-70 Sub-Judge Its Class, Delhi'
The aforequoted order did not indicate as to what proceedings were 'to take place on the 31st January, 1970. The Court having recorded evidence of one of the witnesses on the 19th of November, 1969, did not adjourn the case to 31st of January, 1970, for recording of any evidence. On that date the following order was recorded :-
'PRESENT:Counsel for the parties. It is stated by the counsel for the plaintiff that the transfer application has not yet been disposed of. Now the case is adjourned to 21-2-1970. Announced. sd/- xx 31-1-1970. S.J.I.C,, Delhi.'
The order, quoted above, was passed in the context of the preceding one. It was not indicated as to what would be the proceedings on the 21st of February, 1970. When the suit was taken up on 21st February, 1970, the trial Court passed the order :-
'PRESENT:Counsel for the parties. It is stated by the plaintiffs counsel that the transfer application is fixed for 4-3-1970. The case thereforee adj. to 7-3-1970, for further proceedings. Announced. sd/- xx 21-2-1970. S.J.I C., Delhi.'
The term 'further proceedings' has to find its meaning in the context in which it was employed in the orders dated the 23rd of January, 1970 and the 21st of February, 1970. No order had been received by the trial Court from the District Judge staying the proceedings in the suit. Even then the trial Court continued to adjourn it for the obvious reason that it continued to be stated before it that a transfer application was pending before the District Judge. The trial Court was withholding the hearing of the suit. The suit had been adjourned at a stage when the plaintiff was adducing evidence. After recording evidence of one of the plaintiff's witnesses on 19th November, 1969, the trial Court discontinued the recording of evidence. The orders, reproduced above, do not indicate that on any of the dates when the said orders were recorded the trial Court at all applied its mind to the suit as such. On the 7th of March, 1970 no one appeared on behalf of the plaintiff. The orders recorded on that date are :-
'present None for the plaintiff Defendant through G. A. Let the plaintiff be awaited. sd/- xx 7/3. 'Present: None for the plaintiff. Defendant through G. A. The suit is dismissed in default under Order 9, Rule 8, C. P. C., with costs. File be consigned. sd/- (illegible signature of the presiding officer.)'
The orders passed on 7th of March, 1970, disclose that the Court was passing the orders on a dale which was not fixed for hearing of the suit. That was so because none of the parties was to perform anything concerned with the progress of the suit. Before that date the Court had been recording adjournments in order to discover the fate of the transfer application. Aggrieved by the dismissal of his suit by the order dated the 7th of March, 1970, the plaintiff filed an application under Order 9, Rule 9, of the Code praying that the suit be restored and heard on merits. After receiving a reply to the said application, the trial Court framed an issue for finding out as to whether there was sufficient cause to restore the suit. After recording evidence and hearing the parties that application was dismissed by the order dated the 9th February, 1971. On appeal, the Additional Senior Sub-Judge Delhi, for the reasons stated by him in the impugned order dated the 4th of September, 1971, confirmed the aforementioned order dated 9th of February, 1971.
(3) While it has been strenuously urged on Behalf of the respondent that the petitioner (plaintiff) failed to establish sufficient cause for the restoration of his suit; it is emphasised by the counsel appearing for the petitioner that the very order passed on the 7th of March, 1970, could not have been allowed to bar the trial of the suit on merits.
(4) While Order I of the Code deals with the parties to a suit and Order 2 deals with the frame thereof. Orders 4 and 5 deal with institution of a suit and issuing of summons on the suit being instituted. When a suit is found to have been duly instituted, then as required by Order 5, Rule I a summons may be issued to the defendant to appear and answer the claim. Such a defendant in terms of sub-rule (2) of Rule 1 of Order 5 can appear in person or by a pleader, who may be duly instructed and may he able to answer all material questions relating to the suit. Summons has to be accompanied by a copy of the plaint, as required by Rule 2 of Order 5 of the Code. The summons may be in terms of Rule 5 of Order 5 for settlement of issues or for & final disposal. . While Order 6 relates to pleadings generally. Order 7 prescribes as to what is to be contained in a plaint. Order 8 of the Code deals with the written statement and set-off. Then comes in Order 9. At what stage the provisions contained in Order 9 apply Rule 1 thereof is :-
'1.On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court- house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.'
On the day which may be fixed in the summons issued to the defendant and on which he may appear in person or by his duly constituted pleader, the Court is to hear the suit unless the hearing is adjourned. The requirement of the provisions, noticed above, would be the filing of the written statement by the defendant on the firs' date of his appearance as may have been notified by the summons. Rule 2 of Order 9 shows that the Court is expressly authorised to dismiss the suit where on the date fixed in the summons it is found that the same has not been served on the defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal charges. Then comes Rule 3 : -
'3.Where neither party appears when the suit is called on for hearing the Court may make an order that the suit be dismissed.'
On the very day, which is mentioned in the summons, where none of the parties appears when the suit is called on for hearing, the Court is given the option to dismiss the suit. Where a plaintiffs suit is dismissed under Rule 2 or Rule 3 of Order 9 of the Code, he still remains entitled to institute a fresh suit subject to the law of limitation. Apart from other remedies that right is preserved. Why is the plaintiff afforded such a statutory liberty o file a fresh suit The reason is obvious. Having instituted the suit where he suffers its dismissal either in consequence of the failure to pay the Court fee or charges for securing the service on the defendant or because of his failure to appear as required by Rule 1 of Order 9 and that at a lime when the defendant is absent the law keeps his right to file a fresh suit alive, with the imposition that such institution would be subject to the law of limitation. The jurisdiction to be exercised withinRulesl,2, 3 and 4 is to be exercised on the date fixed in the summons for the first appearance of the defendant. Rule 6 of Order prescribes the procedure which the trial court may follow when at the date fixed in the summons issued to the defendant the plaintiff appeals and the defendant does not appear. Rule 8 of Order 9 is :-
'8Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.'
I find that the jurisdiction which may be exercised under the aforequoted provision can only be exercised on the date which is stated in the summons issued to the defendant for appearing in Court the words 'when the suit is called on for hearing' appear with identical consequence in Rules 6 and 8. The jurisdiction for dismissing the suit when the defendant appears and the plaintiff does not appear to be exercised within Rule 8 of Order 9 is confined to the first appearance required in terms of the summons which may have been issued to the defendant as contemplated by Order 5, Rule 1 of the Code. A consideration of Order 17, Rule 2 fortifies me in the view expressed above. That provision is :-
'2.Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order Ix or make such other order as it thinks fit.'
'I find that the provisions contained in 0. 9 of the Code have been made expressly applicable to the subsequent dates to which the hearing of the suits may have been adjourned. But for Rule 2 of Order 17, the provisions contained in Order 9 were intended to be applicable only on the date on which, according to the summons issued.under Order 5, Rule 1, the defendant was to appear. I am not impressed with the feeble submission that the trial Court had fixed the 7th of March, 1970, for 'the hearing of the suit.'
The hearing of the suit would be on a date to which it may have been adjourned to be taken up by the Court for applying its mind to it. Where the suit stands adjourned for merely acquiring the knowledge as to what has happened in a pending transfer application moved before the District Judge, then it cannot bs held that the adjourned date would be for hearing of the suit. No authority has been cited before me which may persuade me to any other view.
(5) It is strenuously urged on behalf of the respondent that the Court below was dealing with an application preferred under Order 9, Rule 9, of the Code and as such its jurisdiction was controlled by the terms employed in that provision. That provision is :-
'9.(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.'.
(6) The learned counsel appearing for the respondent stresses that the only jurisdiction which the Court has within the said provision is to see whether the plaintiff establishes the satisfaction that there was sufficient cause for his non 'appearance when the suit was called on for hearing. On coming to the conclusion that the plaintiff has established sufficient cause for the restoration of the suit, the only jurisdiction which the Court within the scope of Rule 9 of Order 9 can exercise, according to the submission made by the counsel for the respondent would be that of restoring the suit. According to that submission the Court while dealing with an order of dismissal passed under Order 9, Rule 8 cannot deal with its illegality. The submission does not impress me. Apart from the provisions contained in section 21 of the General Clauses Act, it must be observed that sec ion 151 of the Code is not a provision conferring inherent jurisdiction on a civil Court. The Code in section 151 merely declares the jurisdiction which is inherent in the constitution of a civil Court. The Court acting within Rule 8, having passed an order for dismissal, would be justified while dealing with the said order on an application preferred under Order 9, Rule 9 to determine as to whether the impugned order had been passed or not in competent exercise of its jurisdiction. It is inherent in the constitution of the Court that it may own its mistake and rescind an illegal order which may not bs having any sanction of law. The Court can do that as soon as it becomes obvious to it that it passed the order on an erroneous view of la-v or in a situation when it was not conscious of the true scope of its own jurisdiction.
(7) It is urged that this Court having been moved under section 115 of the Code is only to deal with the impugned order and cannot adjudicate upon the basic illegality inherent in the order dated the 7th of March, 1970. If the trial Court while considering the application under Order 9, Rule 9 could exercise its inherent jurisdiction to determine whether the order impugned before it was ab initio void or not then the Court of first appeal or this Court would also be acting within jurisdiction while determining as to whether the trial Court had passed the impugned order in exercise of the jurisdiction vested in it or not. The learned counsel has cited Sheikh Mohammad v Mt. Rukmina Kanwar, and Rahimuddin Sheikh v. Sarifan Nesa. With the greatest respect to the law laid down in those cases, I am of the view that wherever a High Court is concerned with the exercise of its jurisdiction under section 115 of the Code, it has of necessity to see as to whether the impugned orders have been passed or not by the Courts below in exercise of competent jurisdiction. Where the High Court finds that the trial Court has exercised jurisdiction, which was not vested in it by law, then the High Court has ample power to set aside an order which may be ab aniti void.
(8) As observed earlier, the trial Court having recorded evidence of one of the witnesses produced by the plaintiff on the 19th of November, 1969, and having adjourned the suit from date to date in terms of the orders, quoted in an earlier pert of this judgment, it did not have any jurisdiction to dismiss the suit within the scope of Order 9, Rule 8 of the Code on the 7th of March, 1970. The dismissal was not within the scope of Order 17, Rule 2 of the Code because 7th of March,-1970, had not been fixed for the hearing of the suit. Accepting the petition,
(9) I set aside the order dated the 7th of March, 1970, and restore the suit.
(10) The parties are directed to appear before the trial Court on the 9th of December, 1971. There will be no order as to costs.