MULIA MAHARANA Vs. NARAYAN PATRA

JUDGEMENT

(1.) PLAINTIFF is the petitioner. On 9/3/1962 issues were settled and the suit was adjourned for trial to 23/4/1962. On that day the plaintiff and defendant 1 filed haziras; as the Court was engaged in another part-heard suit, this suit was adjourned to 9/7/1962 for trial. On that day defendant I was ready and filed hazira; out the plaintiff applied for time. The prayer for adjournment was rejected and the parties were directed to get ready at once. Later, on the same day, the following order was passed :

(2.) FROM the aforesaid statement of facts it is manifest that the suit was dismissed not at the first hearing but on the date of adjourned hearing. Order 5, Rule 5 prescribes that the Court shall determine at the time of issuing the summons, whether it shall be for the settle merit of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. Under Order 5, Rule 8 where the summons is for final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case. Order 8, Rule 1 states that the defendant may, and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement in his defence. This rule thus expressly refers to 'the first hearing'. The heading of Order 9 is "Appearance of Parties and Consequence of Non-appearance". Thus it is clear that "first hearing' is clearly for the, settlement of issue or for final hearing. It means the day on which the Court goes into pleadings in order to understand the contention of the parties. If it is only for settlement of issues, the Court cannot pass an ex parte decree on that day under O. 15, Rule 3(1) Proviso which lays down that where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith the court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons had been issued for the settlement of issues only or for the final disposal of the suit: Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects. That this is the concept of 'first hearing' is no longer in controversy - Sangram Singh v. Election Tribunal, Kotah, (S) AIR 1955 SC 425. Thus 9-7-1962 was not the date of the 'first hearing' of the suit.