SATTAN Vs. XITH A D J

JUDGEMENT

(1.) Xth Munsif, Varanasi, decreed O.S No. 850 of 1983 ex parte on 16.5.1986. The said suit had been filed by Hari Nath respondent No. 2 against respondent Nos. 5, 3, 4 and petitioner under Section 6 of Specific Relief Act claiming possession on the basis of dispossession within six months before institution of the suit. Thereafter petitioner filed restoration application. The restoration application was allowed by learned Munsif on 12.2.1988. Against the said restoration order Hari Nath plaintiff respondent filed Civil Revision No. 98 of 1988. XIth A.D.J. Varanasi, through judgment and order dated 12.1.1989, allowed the revision and set aside the restoration order, hence this writ petition.

(2.) Petitioner in his restoration application stated that he was not aware of pendency of the suit and no summon was served upon him. Trial court clearly held that summon was sufficiently served upon the petitioner and he had also filed the written statement. However, trial court held that 21.4.1986 was the date fixed in the suit for disposal of objections on Amin's report and on the said date issues No. 3 and 5 were decided and it was ordered that the suit be heard ex parte and 13.5.1986, was fixed for ex parte hearing. On 13.5.1986, ex parte evidence of the plaintiff was taken, argument was heard on 14.5.1986 and ex parte judgment was delivered on 16.5.1986. According to the learned Munsif as 21.4.1986 was not the date fixed for hearing of the suit hence order that suit be heard ex parte could not be passed on the said date in terms of Order IX, Rule 6, C.P.C. Order IX, Rule 6, C.P.C. ipso facto applies only when defendant does not appear on the first date. However, if the defendant has appeared and thereafter absented himself then Order XVII, C.P.C. particularly Rule 2 thereof covers the position. By virtue of Order XVII. Rule 2 "where, on any date 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 makes such other order as it thinks fit."

(3.) Even under Order IX, Rule 6, C.P.C. is not mandatory that if on the date of hearing defendant is absent first an order to the effect that the suit be heard ex parte should be passed and then some other date for ex parte hearing should be fixed. Both the things may simultaneously take place, i.e., on the same date order for proceeding ex parte may be passed and ex parte hereing may be held.