TILAK RAJ Vs. HAZARA SINGH

JUDGEMENT

(1.) Two suits were instituted by the plaintiff, Tilak Raj, for pre-emption of certain sales. The party defendants, of course, to the suits were different. The suits were not immediately registered according to Rule 2 of Order 5, of the Civil Procedure Code, but appeared to have been adjourned to March 19, 1966, by the trial Court for compliance of some directions which are not apparent from the orders of the trial Court but with regard to which the learned counsel for the plaintiff has stated that the direction of the learned trial Judge in each suit was to produce certain documents. On March 19, 1966, the plaintiff did not appear. He had engaged an attorney to look after the two suits, but he too did not appear, and his counsel did not appear either because he was engaged in another Court. Each suit was dismissed by the learned trial Judge on the very day with this order "Suit be registered. Suit is dismissed under Order 9 Rule 3 of the Civil Procedure Code." It appears that shortly after the suits had been dismissed, the counsel for the plaintiff appeared in Court and was appraised of the fact, but he neither moved an immediate application in each suit for the restoration of the same, nor did he proceed to convey the information of dismissal of the suits to the plaintiff.

(2.) Some days later in another connection the plaintiff, having come to the Courts, came to know of the dismissal of his suits on March 19, 1966. He then went back to Delhi, his place of residence, and returned on April 18, 1966, and then moved an application under Order 9, Rule 9 of the Code for restoration for each one of the two suits, the sufficient cause shown in each application being that he himself was unable to come on the date the suits were set in the list of the learned trial Judge and his counsel cold not appear because of his having been engaged in another Court. The trial Judge was of the opinion that that was not a sufficient ground for setting aside the dismissal of the suits of the plaintiff for default of appearance and so he dismissed the applications of the plaintiff on January 20, 1968. These are two revision applications (Civil Revisions Nos. 400 and 401 of 1968), one in relation to each suit, from the orders of the learned trial Judge, and brief argument is urged by the learned counsel for the plaintiff at this stage.

(3.) The learned counsel points out that after a plaint is presented to an officer appointed by the Court according to sub-rule (1) of Rule 1 of Order 4, it is to be registered in the register of suits according to Rule 2 of the order. After that, according to Rule 1 of Order 5 the defendant is to be summoned. And Rule 1 of Order 9 then provides that on the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a further day fixed by the Court, and then Rule 3 of the same order provides that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. The learned counsel urges that not until the summons has been issued to a defendant in a suit and the suit is adjourned for the appearance of the parties according to rule 3 of Order 9. Apparently this appears to be correct. The learned counsel then supports his contention by citing three decided cases of the Lahore High Court in Isher Singh v. Sharaf, by Moti Sagar, J., in Chanda Singh v. Ghulam Mohammad, 1931 AIR(Lah) 69, by Bhide, J., and in R.C.J. Paul v. Devi Dayal Sethi, 1935 AIR(Lah) 656 by Agha Haider, J. fixed for the appearance of the defendant within the meaning of Rule 1 of Order 5, the Court has no power to dismiss the suit in default under Rule 3 of Order 9. What is urged by the learned counsel for the opposite side is that although the counsel for the plaintiff knew within a short time of the dismissal of the suits on the very day that the same had been dismissed under Rule 3 of Order 9, he proceeded to make no application on the very day for the restoration of the suits and subsequently, when some days after the plaintiff come to know of this fact, he did not move the applications immediately either. He wanted to make the application to the last day of limitation. This however, does not alter the position, because the applications have been made within the period of limitation, and as Rule 3 of Order 9 is not attracted until a defendant has been summoned according to Rule 1 of Order 5, the learned trial Judge not having adjourned the suits after registration for the matter of summoning the defendants according to Rule 1 of Order 5, apparently he had no power to proceed under Rule 3 of Order 9.