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Hanuman Singh Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 171 of 1977
Judge
Reported in1978WLN(UC)404
AppellantHanuman Singh
RespondentUnion of India (Uoi) and ors.
DispositionPetition allowed
Cases ReferredBhura v. Nathulal
Excerpt:
.....2. procedure if parties fail to appear on day fixed-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 orders as it thinks fit. a preusal of the aforesaid provision shows that it enables the court to dispose of the suit in one of the modes directed by order ix in a case where on the day to which the hearing of the suit is adjourned, the parties, or any of them, fail to appear. i am further of the view that the petition filed by the plaintiff for restoration of the suit under section 151 cpc was maintainable and in dismissing the said application on the ground that it was not maintainable the additional district..........procedure if parties fail to appear on day fixed-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 orders as it thinks fit.a preusal of the aforesaid provision shows that it enables the court to dispose of the suit in one of the modes directed by order ix in a case where on the day to which the hearing of the suit is adjourned, the parties, or any of them, fail to appear. the question which arises for consideration in this case is whether 27th may, 1977 can be regarded as the date to which the hearing of the suit had been adjourned. as already indicated, the order sheet shows that on 16th april, 1977 the.....
Judgment:

S.C. Agrawal, J.

1. This revision petition his been filed by the plaintiff Hanuman Singh for setting aside the orders dated 27th May, 1977 and 1st September, 1977 passed by the Additional District Judge No. 2,Jodhpur in civil suit No. 42/74. By order dated 27th May, 1977 the Additional District Judge dismissed the said suit for default and by order dated 1st September, 1977 he dismissed the application filed by the petitioner Under Section 151 CPC for restoration of the said suit.

2. The suit referred to above was filed by the petitioner against the respondents on March 27, 1974. In the said suit written statement was filed on 16th August, 1975 and issues were framed on 20th September, 1976. On that date i.e. 20th September, 1976 the suit was adjourned to November 4, 1976 for recording the evidence of the plaintiff-petitioner. On November 4, 1976 the suit was adjourned to January 8, 1977 on account of inability of the counsel for the defendant-respondent to appear in the Court. As January 8, 1977 happened to be a holiday, by order dated 10th January, 1977, the suit was adjourned to 10th February, 1977 for recording the evidence of the petitioner and on 10th February, 1977, at the request of the counsel for the petitioner, the suit was adjourned to 16th April, 1977. Before 16th April, 1977 the counsel for the petitioner had given a notice to the counsel for the defendant-respondents regarding production of certain original documents and on 16th April, 1977 an application was moved on behalf of the petitioner for leave to adduce secondary evidence in respect of the aforesaid documents which were in possession of the defendant-respondents. By order dated 10th April, 1977 it was directed that the case would come up on 29th April, 1977 for production of documents and for reply and arguments on the application liled by the petitioner. On 29th April, 1977 the matter could not be taken up on account of strike and it was adjourned to 27th May, 1977 for production of documents and for arguments on the application. On 27th May, 1977 nobody appeared oh behalf of both the parties and the suit was dismissed for default. Aggrieved by the aforesaid order the petitioner on 11th July, 1977 filed a petition under Section 151 CPC for restoration of the suit. The Additional District Judge, by his order dated 1st September, 1977 dismissed the said application on the ground that the order dated 27th May, 1977 dismissing the suit for default was passed in exercise of the power under Order XVII Rule 2 read with Order IX C.P.C. and that the only remedy open to the petitioner was to move a petition under Order IX Rule 9 and that petition was not maintainable under Section 151 CPC. Aggrieved by the aforesaid orders the petitioner has moved the present revision petition.

3. Shri B.L. Purohit, the learned Counsel for the petitioner, has submitted that on 27th May, 1977 only the application filed by the petitioner for permission to adduce secondary evidence was listed for arguments and the Court had no jurisdiction to dismiss the suit itself for default. The submission of the learned Counsel is that as the order dated 27th May, 1977 was not an order passed under Order XVII Rule 2 and Order IX CPC the petition for restoration of the suit was maintainable Under Section 151 CPC and the Additional District Judge, in dismissing the said application on the view that it was not maintainable, had failed to exercise jurisdiction vested in him by Jaw and that both the orders passed by the Additional District are, therefore liable to be set aside.

4. Shri A.K. Mathur, the learned Counsel for the respondents, has, on the other hand, submitted that the order dated 27th May, 1977 passed by the Additional District Judge dismissing the suit for default was passed under Order XVII Rule 2 CPC read with Order IX CPC and that the only remedy open to the petitioner was to move a petition for setting aside the said order dismissing the suit for dt fault under Order IX Rule 9 CPC and a petition for restoration of the suit was not maintainable under Section 151 CPC. In support of his argument aforesaid the learned Counsel for the respondents has submitted that the provisions of Order XVII Rule 2 are applicable in every case in which issues have been framed and the suit is fixed for evidence and is thereafter adjourned for some other date The submission of the learned Counsel for the respondents is that 27th May, 1977 was the date to which the hearing of the suit had been adjourned and therefore, the Additional District Judge was competent to dismiss the suit under the provisions of Rule 2 of Order XVII CPC read with Order IX Rule 8 CPC.

5. Order XVII Rule 2 CPC provides as under:

2. Procedure if parties fail to appear on day fixed-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 orders as it thinks fit.

A preusal of the aforesaid provision shows that it enables the court to dispose of the suit in one of the modes directed by Order IX in a case where on the day to which the hearing of the suit is adjourned, the parties, or any of them, fail to appear. The question which arises for consideration in this case is whether 27th May, 1977 can be regarded as the date to which the hearing of the suit had been adjourned. As already indicated, the order sheet shows that on 16th April, 1977 the matter had been adjourned for 29th April, 1977 only for the purpose to production of documents and for filing the reply to the application filed by the petitioner for permission to adduce secondary evidence under Section 65 of the Evidence Act and for arguments on the said application. On 29th April, 1977 the matter could not be taken up on account of strike and it was adjourned to 27th May, 1977. Thus the matter was adjourned to 27th May, 1977 for the production of documents and for filing a reply to the application filed by the petitioner for permission to adduce secondary evidence under Section 65 of the Evidence Act and for arguments on the said application. Can it be said that May 27, 1977 was the date to which the hearing of the suit was adjourned. To say so would mean that the expression 'hearing of the suit' includes hearing of an application of an interlocutory nature also. I however, find that in a number of cases the said expression has been construed to mean hearing of the main suit and not to include the hearing of interlocutory applications in a suit. In this regard reference may be made to the decision of the Patna High Court in Sukhdeo Pahtak v. Judaga Minn AIR 1921 Pat. 96. In that case the issues had been framed on 4th December, 1919 and the case was fixed for hearing on 2nd February, 1920 but on that date it was adjourned to 26th March, 1920 and on the same day an application was filed by the defendant for amendment of the issuss and the case was fixed for consideration of that application on 26-3-1920. but on that date no body appeared and the suit was dismissed in default. The Patna High Court held that the case was not covered by Order 17 Rule 2 and that the Subordinate Judge had no right to dismiss the suit on 26th March, 1920 because on that date he had not fixed that case for disposal of the suit and that on that date all that the Subordinate Judge could do was to dismiss the application of the defendant for amendment of the issues. The aforesaid decision of the Patna High Court has been followed by the Lahore High Court in Grimault & Co v. Charan Das & Sons AIR 1934 Lah. 237 wherein issue were framed on 5th December, 1932 and on 7th January, 1933 an application was filed for amendment of the issues and another application was filed for discovery and production of documents which applications were adjourned to 9th January. 1933 and thereafter to 16th January, 1933 and on that date the suit was dismissed for default as neither party appeared in the Court. In Sheikh Mohammed v. Mr. Rukmina Kunwar and Ors. AIR 1946 All. 506 an application under, the Encumbered Estates Act had been filed by the defendant and on account of the said application the hearing of the suit had been stayed till the decision of the Encumbered Estates Act case and the case was fixed for 3rd May, 1944 for assertainment of the result of the Encumbered Estates Act case and on that day the court dismissed the whole suit for default. A Division Bench of the Allahabad High Court held that application for restoration of the suit was maintainable Under Section 151 CPC and that the case was not covered by the provisions of Order IX Rule 9 CPC in as much as the date on which the suit was dismissed for default was not the date of hearing of the suit.

6. Apart from the cases referred to above we have got a decision of this Court in Bhura v. Nathulal 1953 RLW 496 in which in a pending appeal before the High Court an application had been moved on behalf of the appellant for correction of the names of one of the opposite parties & the said application was listed for orders before the Court on 7th August, 1930 but as nobody appeared on behalf of the appellant on that date the appeal was dismissed by the court. On an application filed for restoration of the appeal under Section 151 CPC the court held that on 7th August, 1950 only the application had been listed before the court and the appeal itself was not listed before the Court and that appeal could not be dismissed and only the application for amendment could be dismissed on that date. In my view the principles laid down in the aforesaid case are applicable to the present case.

7. I am, therefore, of the view that the Additional District Judge had no jurisdiction to dismiss the suit of the plaintiff by the order dated 27th May, 1977 under Order XVII Rule 2 read with Order IX CPC. I am further of the view that the petition filed by the plaintiff for restoration of the suit under Section 151 CPC was maintainable and in dismissing the said application on the ground that it was not maintainable the Additional District judge failed to exercise jurisdiction vested in him by law.

8. The result is that the revision petition is allowed and the orders dated 17th May, 1977 and 1st September, 1977 passed by the Additional District Judge No. 2, Jodhpur, in civil suit No. 42/74 are set aside and it is directed that the Additional District Judge No. 2 will proceed with the trial of the said suit. Taking into consideration the circumstances of the case I direct that the parties shall bear their own costs of this revision petition.


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