GOPI HALWAI Vs. BIBI ZAINAB KHATOON

JUDGEMENT

(1.) In this revision application by the defendant two questions have been raised; (i) as to whether in the circumstances of the present case, an application under Order 9, Rule 9 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was maintainable and (ii) whether an earlier order passed under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, would be automatically revived on the restoration of the suit.

(2.) Short facts giving rise to the present application are as follows. The plaintiff-opposite party filed a title suit in the Court of the Munsif at Patna for eviction of the petitioner on the ground of the default in payment of rent. Written statement was filed challenging the claim of the plaintiff by the petitioner and thereupon on the 9th September, 1970, an order under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act was passed by the learned Additional Munsif directing the petitioner to deposit all the arrears of rent since Magh 1375 Fasali till Sawan of the current Fasali and to go on paying the current and future rents by the 15th day of each of the following month. On the 2nd July, 1971, although a hazri was filed on behalf of the plaintiff, when the suit was called on for hearing, nobody responded to the call on behalf of the plaintiff. Defendant's lawyer was present in the court and the suit was dismissed by the learned Additional Munsif on the ground of non-prosecution. An application was filed by the plaintiff on the 6th July, 1971, which was registered as Miscellaneous Case No. 20 of 1971. By the impugned order, the miscellaneous case has been allowed and the title suit in question has been restored to its file. The court below has also purported to revive the earlier order passed under Section 11-A of the Bihar Buildings (Lease. Rent and Eviction) Control Act, and has directed the petitioner to deposit all the arrears that accumulated during the period of dismissal of the suit within a week from the date of the order. The defendant, in this Court, has challenged the propriety of both the orders of the court below.

(3.) Mr. Ali Ahmad, in support of the petition on the first question, submitted that the filing of the hazri on behalf of the plaintiff on the 2nd July, 1971, would amount to the appearance of the plaintiff and his absence to respond to the call when the suit was called on for hearing, would not make the provisions of Rule 8 of Order 9 of the Code applicable to the facts of the present case and, therefore, the application filed by the plaintiff under Order 9, Rule 9 of the Code was not maintainable inasmuch as he should have filed a regular appeal under Section 96 of the Code against the said order of dismissal. In support of his contention, learned Counsel placed reliance upon a decision of this Court in Suraj Prasad Singh v. Rambaran Singh. AIR 1956 Pat 127. In that case, the suit was fixed for hearing on the 18th July, 1955. Both the parties had filed petitions for time but the court rejected the petitions and directed the parties to get ready at once. Thereafter no step was taken by any of the parties and nobody responded to the call when the suit was called on for hearing and the suit was dismissed for default. An application was filed purporting to be under Order 9, Rule 4 of the Code for restoration of the suit. At the time of the final hearing, a question was raised as to whether the filing of a petition for time by the defendant would amount to his appearance and thereby take out the order of dismissal from the purview of the application of Rule 4 of Order 9 of the Code and attract the application of Rule 9, Order 9. A learned Single Judge took the view that, no doubt, the defendants had filed a petition for time earlier in the suit on the day but when the suit was taken up for hearing after rejecting the petition for time, and was called on for hearing and none responded to the call and took any step, it could not be said that the defendants should be regarded as having "appeared" in Court when the case was called on for hearing. Taking this view, his Lordship came to the conclusion that the plaintiff had rightly made an application for the restoration of the suit under Order 9, Rule 4 of the Code and was not obliged to make an application under Order 9, Rule 9 of the Code. In my opinion, the authority cited by the learned counsel instead of supporting him goes againts him. In the instant case, however, it is evident that although a hazri was filed by the plaintiff, he did not appear when the suit was called on for hearing and, that is exactly what is required by the provisions of the relevant rules of Order 9 to mean the presence of the parties, that is, the parties must show their presence by responding to the call of the court when a suit or a case is called on for hearing. Absence of a party at the time of the call although he might have filed a hazri earlier, would not amount to his presence. The Court below, therefore was right in dismissing the suit and the dismissal in question, in my opinion, would be a dismissal within the provisions of Order 9, Rule 3 of the Code and, therefore, the plaintiff was not bound to file an appeal against the order of dismissal, although the learned Munsif has said in the order dismissing the suit that it was being dismissed for non-prosecution instead of saying that it was being dismissed for default. The first contention raised by Mr. Ali, therefore, has no merit and must fail.