RATAN CHAND GULATI Vs. BRIJ BHUSHAN LAL

JUDGEMENT

(1.) THIS is a revision Under Section 115 Code of Civil Procedure by Ratan Chand Gulati, Defendant, against the order dated 28 -11 -1964 of Havali Munsif, Saharanpur, allowing the Plaintiff's application Under Order IX, Rule 9 Code of Civil Procedure on payment of Rs. 10/ - as costs.

(2.) THE material facts of the case are that issues in the suit were struck on 16 -3 -1964 when 19 -5 -1964 was fixed for final hearing, that is, for the recording of the evidence of the parties. On that date the Plaintiffs counsel moved an application for adjournment and when the application was rejected, he reported 'no instructions'. Thereupon the Munsif dismissed the suit. The Plaintiff, Brij Bhushan Lal, then moved an application Under Order IX, Rule 9 Code of Civil Procedure for setting aside the order of dismissal and for restoration of the suit. The order of dismissal was deemed to have been passed Under Order IX, Code of Civil Procedure and not Under Order XVII, Rule 3 Code of Civil Procedure and the Munsif held under order dated 31 -10 -1964 that the restoration application Under Order IX, Rule 9, Code of Civil Procedure was maintainable. The restoration application was eventually allowed under order dated 28 -11 -1964 and the suit was restored subject to payment of Rs. 10/ - as costs by 7 -12 -1964.

(3.) THE material point for consideration is whether the words "on any day to which the hearing of the suit is adjourned" used in the first part of Order XVII, Rule 2, Code of Civil Procedure include the first date of final hearing, that is, for recording of evidence, fixed after the framing of the issues: if so, by virtue of the Explanation to this rule, added by the Allahabad High Court, a party represented in Court by an agent or pleader, though engaged only for the purpose of making an application, shall be deemed to be present and not to have failed to appear and hence any decree passed shall not be in default or ex parte and no restoration application Under Order IX, shall be maintainable.