GOPAL KISHNA PANDEY Vs. DIST JUDGE FAIZABAD

JUDGEMENT

(1.) List revised Non present for the respondents This is a part-heard writ petition. Already, parties' counsel were heard at length and the case was adjourned granting time to petitioners' counsel to file a Supplementary Affidavit alongwith the true typed copy of order-sheet dated 27th of February, 1987 and the same was filed long back, but no objection has been filed by the respondents, hence I proceed to decide the writ petition finally after hearing petitioners' counsel as well as arguments advanced by the respondents' counsel earlier.

(2.) The plaintiff's-petitioners have approached this court under Article 227 of the Constitution of India where an application moved by the petitioners under Order 9 Rule 9 of the Code of Civil Procedure was rejected by the trial court as well as Revisional Court by the impugned order dated 22nd of April, 1987 and 27th of February, 1988 respectively. The brief matrix of the case is that petitioners have filed a Regular Suit No. 125/ 1976 for permanent injunction. Notices were served on the defendants of the suit and Written Statement was also filed. The case was fixed for 17th of February, 1987, for hearing. The plaintiffs-petitioners have moved an application for adjournment of the case, hence the case was adjourned for 23rd of February, 1987. On 23rd of February, 1987, petitioners could not appear before the trial court and the case was adjourned for 27th of February, 1987. On 27th of February, 1987, the petitioners again could not be present before the trial court. This fact is evident from the order sheet dated 27th of February, 1987 filed as Annexure No. S.A.- 1 to the Supplementary Affidavit. The order dated 27th of February, 1987 is reproduced as under:- From the order sheet dated 27th of February, 1987, it is evident that since the petitioners were not present before the trial court hence the trial court had proceeded ex parte and adjourned the case for 10th of March, 1987. In the meantime on 5th of March, 1987, petitioners had moved an application for recall of the order dated 27th of February, 1997. An objection to petitioners' application was filed by the respondents. The tnal court had rejected the application by the impugned order dated 21st of April, 1987, copy of which has been filed as Annexure No. 7 to the writ petition. Feeling aggrieved with the impugned order of the trial court, petitioners have preferred a revision which was dismissed by the Revisional Court. Copy of the impugned order dated 27-8-1988 has been annexed as Annexure No. 8 to writ petition.

(3.) The short question involved in the present writ petition is that whether in the absence of plaintiffs counsel, the trial could have passed an order to proceed ex parte in the suit in question or the suit should have been dismissed in pursuance to the provisions contained in Order 9 Rule 8 of the Code of the Civil Procedure. For convenience, Order 9 Rule 8 of the Code of Civil Procedure is reproduced as under:-