BHATILEY CHUNNI LAL Vs. CHAKERPAN

JUDGEMENT

(1.) THE facts out of which this appeal arises are these:---THE 28th of February 1916 was fixed apparently for settlement of issues in the suit which the plaintiff had instituted. On that date the defendants filed their written statement and produced certain, documentary evidence, which on referring to the record we find to be certain certified copies. From the order sheet it appears that the Pleader for the plaintiff was asked whether he admitted, or, denied- the documents produced; the Pleader Stated that he was unable either to admit or to deny the documents. THEreupon the Court made an order apparently under Order X, rule 4, paragraph (1), directing the Pleader to produce the plaintiff on the 7th of March 1916. On that date neither the plaintiff nor his Pleader appeared and thereupon the Court passed the following order: "THE plaintiff was ordered to appear in person before the Court, as his Pleader did not answer material questions relating to the case nor could admit or deny the documentary evidence produced by the other side. To-day neither the plaintiff appears nor his Pleader is present to prosecute the case. THE suit is, therefore, dismissed." THE learned Subordinate Judge, however, proceeds to say that he dismissed the suit under Order X, rule 4 of the Code. THE plaintiff treating the order as one under Order IX, rule 8, read with Order XVII, Rule 2, made an application under Order IX, rule 9, for the restoration of the ease on grounds mentioned in that application. THE Court refused to entertain the application and from that order of refusal the present appeal has been preferred; THE question in this case is whether the order which the Court passed on the 7th March 1916 should be deemed to be and order which the Court could legally pass under Order X, Rule 4, or whether it should be deemed to be an order under Order IX, rule 8 read with Order XVII, rule 2. If the order is one under Order X, rule 4, no application could be made to have that order set aside otherwise than by way of appeal under Order XLIII; but if the order is "In reality an order under Order IX, rule 8, an application could be presented and entertained under rule 9 of that Order". In our opinion the order passed by the Courts although it purports to be one under Order X, rule 4, must-be held to be an order under rule 8 of Order IX. Under Order X, rule 4, Clause (2), If the party ordered to appear fails without lawful excuse to appear, on the date appointed by the Court, the Court may pronounce judgment against him. But where, as in this case, neither the plaintiff nor his Pleader appears, the Court is not in a position top ascertain whether the plaintiff had or had not any lawful excuse to appear on that date; Neither the plaintiff nor his Pleader being present the proper order which the Court could legally have passed was an order under Order XVII, rule 2, read with Order IX, rule 8. We must read the order of the 7th of March 1916 v to be an order which the Court could lawfully pass, that is, an order under rule 8 of Order IX. In this view the application presented in the Court below under rule 9 of Order IX ought to have been entertained and tried on the merits and should not have been refused on the ground that it was not maintainable. We accordingly allow the appeal, set aside the order of the Court below and remand the case to that Court with directions to entertain and dispose of the application filed by the plaintiff. Costs here and hitherto will be in the discretion of the Court below and will in this Court include fees on the higher scale.