SETH MUNNA LAL Vs. SETH JAI PRAKASH

JUDGEMENT

(1.) THE following question has been referred to this Full Bench for opinion:-

(2.) BEFORE examining the previous deci sions of this Court on this point, it will be convenient to refer to the relevant pro visions of law. Order 9 of the Code of Civil Procedure deals with the appearance of parties and consequence of non-appear ance on the first date fixed for the hear ing of a suit. Rule 6, inter alia, provides that, if, on this date, the plaintiff appears and the defendant does not appear, the Court may proceed ex parte if it is proved that the summons was duly served. Rule 13 confers a right on the defendant to make an application for setting aside the ex parte decree. Rule 8 provides that, if, on this date, the defendant appears and the plaintiff does not appear, the Court shall dismiss thp suit- uniess the defendant admits the claim or a part of the claim. Rule 9 confers a right on the plaintiff to apply for an order to set aside the dis missal. Order 17 deals with adjournments and the procedure at the adjourned date of hearing. Rules 2 and 3 of this Order, with which we are concerned, have been amended by this Court and, as amended, stand thus:-

(3.) LET us now exar-iine the cases relied upon by learned counsel for the plaintiff-respondent. The first case relied upon is Sri Krishen v. Radha Kishen, AIR 1952 All 652. In this case, on the adjourned date of hearing, the plaintiffs were absent but the defendants were present. The Court proceeded under O. 17, R. 3 and dis missed the suit. The plaintiffs applied under O. 9, R. 9 for setting aside the order but the court rejected the application on the ground that the dismissal was not .for default but under O. 17, R. 3. The plain tiffs then filed an appeal in the lower ap pellate Court but the appeal was dismis sed. The plaintiffs then came to this Court In revision.This Court dismissed the revi sion. It observed: