JOONA SINGH Vs. BHOPAL MOTORS AND MACHINARY CO.

JUDGEMENT

(1.) PARTIES are heard finally.

(2.) ON 13.10.95, none appeared for the plaintiff in the Civil Suit but the defendant was represented by his counsel. The trial Court was pleased to dismiss the suit for want of prosecution. On the same day an application under Order 9 Rule 9 CPC with affidavit was filed on behalf of the plaintiff. Instead of registering a separate M.J.C. the lower Court took cognizance of the said application in the dismissed suit and directed issuance of the notice to the other side. On 23.11.95 the defendant did not appear in the Court but the acknowledgement of the Registered AID was received. As none appeared for the defendant, the Court proceeded ex -parte and restored the suit. Not only this, the Court after restoring the suit in the very same proceedings directed that the suit itself be listed for recording ex -parte evidence. An ex -parte decree was passed. The defendant thereafter moved an application under Order 9 Rule 13 CPC for setting aside the ex -parte decree. The learned lower Court rejected the said application, therefore the appellant -defendant has preferred this appeal. After hearing the parties at length, this Court is of the opinion that the manner in which the proceedings were drawn by the learned Court below are far from being satisfactory. It appears that the learned Court below did not care to go through the Rules and the provisions of law. Once a suit is dismissed and an application for restoration is filed then the said application is to be registered as separate M.J.C. In the present case, the Court below received the application in the dismissed suit for which it has no jurisdiction. Once the suit is dismissed or disposed of then Court becomes functus officio but for exercising powers under Sections 151, 152 or 153 it could not exercise any other powers in the suit when the suit was dismissed for want of prosecution. The Court had become functus officio and was not entitled to receive an application in the suit, be it an application under Order 9 Rule 9 CPC. The illegality did not stop there. If after receiving the notice the defendant did not appear in the Court then the Court was only entitled to restore the suit, in absence of the defendant treating him to be ex -parte but it has no jurisdiction to record the proceedings in the manner as it has done. The Court below not only restored the suit ex -parte but proceeded ex -parte against the defendant in the suit itself. The learned lower Court did not consider that the suit was not fixed for hearing on that day and if the suit was restored then it was not a date of hearing and Court could not proceed ex -parte against the defendant who did not choose to remain present to oppose the application under Order 9 Rule 9 CPC. On 23.11.95, the Court proceeded ex -parte on the application filed under Order 9 Rule 9 CPC restored the suit but on the very same day in the same proceedings directed that the defendant be proceeded ex -parte in the suit and matter be fixed for ex -parte evidence. In the opinion of this Court, the lower Court had no jurisdiction to proceed ex -parte in the suit or tO,direct that defendant be proceeded ex -parte because 23.11.95 was not a date of hearing of the suit. The proceedings drawn by the lower Court are contrary to law.