PALAT AHIR Vs. BAIJNATH MAHTON

JUDGEMENT

(1.) This application is against an order dismissing for default a suit instituted by the plaintiff-petitioner. The suit was for setting aside an 'ex parte' decree passed against the petitioner. The suit in question was instituted in March, 1947, and the petitioner took steps for service of notices upon the defendants. It appears from the order of the Court, dated the 15th of May, 1947, that summonses and notices were served on all the defendants except defendant No. 9. Apparently the Court was not satisfied with this service, and therefore the Court directed that the plaintiff should file registered cards for defendants 1 to 8 and 10 to 12 and fake steps for service on defendant No. 9. Eventually notices appear to have been served on defendant No. 9 also, on the 16th of July 1947, but there was some delay in the service of the registered cards on some of the defendants with the result that on the 10th of September 1947, the Court directed that the postmaster should be written to about the service of registered cards on defendants 3, 5, 9, 10 and 12 by the date fixed, From time to time the order sheets disclose that issues were settled and parties appear to have been ready. On the 30th of November 1948, the Court found that the registered cards were served on the other defendants except defendants 3 and 9, and it directed that the plaintiff should take fresh steps for service of registered notices on these defendants. In the meantime defendant No. 1, died and in his place the heirs sought to be substituted had also to be served with notices. The Court accordingly passed an order on the 5th of January 1949, directing the plaintiff to take necessary steps for service of notices upon all these persons. This order was not complied with in spite of repeated adjournments. Ultimately the suit was dismissed for default on the 15th of January 1949. In the application for restoration of the suit the petitioner alleged that he was not correctly informed of the date fixed by the Court for taking those steps by his 'karpardaz'. That allegation of his has not been accepted by either of the two Courts below, and they have both held that this explanation was quite unsatisfactory and could not be entertained.

(2.) Mr. Banerji on behalf of the petitioner has, however, contended that the application could not be dismissed without a date of hearing having been fixed by the Court below, and he relies upon a decision of this Court in 'SRIPATI SARAN PRASAD SINGH v. INDARJIT MAHTON', AIR 1939 Pat 160. I am afraid this decision does not help Mr. Banerji's contention because in the present case, as rightly pointed out by the learned Subordinate Judge in appeal, there was a date fixed tor the appearance of the defendants. This is apparent from the order of the Court, dated the 8th of April 1947, in which the Court fixed the 15th of May 1947, for appointment of a guardian and for settlement of issues. That being so, the contention of the learned counsel is without any foundation. It is true that in one of the orders dated the 23rd of August 1948, the Court observed that summons would be issued to certain persons for proving a certain document when the date for hearing would be fixed. Order 9, Rule 1, Civil Procedure Code, provides that on the date fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. Therefore, what this rule contemplates is that the date for appearance given in the summons served on the defendants is the date fixed for the hearing of the case but the hearing may be adjourned from time to time. There can be no doubt that there was such a date fixed in the summons as it appears from the order, dated the 8th of April 1947, to which I have already referred. The contention, therefore, fails.

(3.) It is next pointed out that in any case the suit should not have been dismissed in its entirety; it could be dismissed as against the heirs of the deceased defendant No. 1 and as against defendants 3 and 9 only. There is some substance in this contention, but in revision I am not inclined to interfere because the restoration of the suit would be fruitless as eventually it is bound to result in dismissal. The suit was for setting aside an 'ex parte' decree, and it is impossible to hold that the decree would be a good decree as against some of the defendants but a bad decree as against the other defendants. That being so, the dismissal of the suit as against some of the defendants would be tantamount to a dismissal of the suit itself.For these reasons, the application fails and must be dismissed with costs: hearing fee one gold mohur.