Maharaja Bahadur Ram Ranbijaya Prasad Singh vs Sakalpat Tewary and Another

Varma, J.—This is a petition on behalf of the plaintiff against an order of the Munsif of Buxar dismissing a suit for default and meeting a petition to restore it. The circumstances under which this order came to be passed are to be found in the order sheet of the learned Munsif, which is before us. The plaint was filed on 14th June 1940. The suit was for possession and mesne profits. It was registered and the plaintiff was ordered to file deficit court-fee stamp of Rs. 50 by 2lst June 1940 without fail. On 20th June 1940, deficit court-fee stamp of Rs. 50 was filed and the Court ordered the case to be put on the date fixed. On 2lst June 1940, the order sheet states "Above deficit court-fee stamp put up, Admit, Issue summons to defendant fixing 17th July 1940 for settlement of issue." This date, 17th July 1940, is of importance, because the chief question that we have to consider is, whether the date on which the learned Munsif dismissed the suit for default was a date fixed for hearing of the suit. To proceed with the sequence of events, on 17th July 1940, the order sheet says "Summons served, Plaintiff files haziri. Plaintiff to prove service and file two registered cards by 29th July 1940, Inform." Evidently, from this order it appears that although the report of the peon was received in Court saying that the summons had been served the Court wanted the plaintiff to prove service. Then on 29th July 1940, the order is as follows: "Plaintiff files haziri. Plaintiff to comply with the above orders by 1st August 1940, positively. Inform." On 1st August 1940, the order passed is "Plaintiff neither appears on repeated call nor takes any step. Ordered, case dismissed for default." Thereafter a petition was filed by the plaintiff for restoration of the suit but that petition was rejected as being groundless on 15th August 1940.

From the facts gathered from the order sheet, it appears that on 17th July 1940, the Court fixed 29th July 1940, not for the defendant to appear but for the plaintiff to prove service and file registered cards and as this was not done the suit came to be dismissed on 1st August 1940. Apparently, the order was made under Order 9, Rule 3, Civil P.C., which says that

where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Now the question is whether 29th July 1940 or 1st August 1940 was a date fixed for hearing in this case. What amounts to a date fixed for hearing can be gathered from the series of decisions to which our attention has been drawn. In Chandra Shekhar and Another Vs. Amir Begam it was pointed out that Rule 1 of Order 9 contemplates proceedings following upon the fixing of a date for the appearance of the defendant, and Rule 3 of the order would not apply unless a date has been fixed for the appearance of the defendant and neither party appears when the suit is called on for hearing on that date. In Balmakund Marwari v. Lachmi Narain Marwari (''20) 7 AIR 1920 Pat. 595, Dawson Miller, C.J. observed that by hearing of the suit is meant.

the hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it,

and that deciding merely some interlocutory matter between the parties as to the future conduct of the suit would not amount to t hearing of the suit. In Sheikh Abdul Rahmaa v. Shib Lal Sahu (''22) 9 AIR 1922 Pat. 252, Jwala Prasad, Ag. C.J. observed as follows:

The word ''hearing'' has not been defined in the Code but it is obvious that it is used in the different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Now in Order 9, Rule 1 read with Rule 3 it would appear that after the institution of the suit when the summons is issued upon the defendants calling upon them to appear upon a particular date that date is the first hearing of the suit, and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff''s suit is dismissed for default. Various steps have to be taken by the parties in a suit in order that it may be ready for final hearing; which means the examination of witnesses, the tendering of documents, and the hearing of arguments. At S the intermediate stage in order to enable or compel the parties to take necessary steps in the prosecution of the case the Court may fix dates for some particular action to be taken. These dates are dates for the hearing of that particular matter which is specified in the order of the Court.

In that case his Lordship held that the date, 6th June, was a date fixed for the appointment of a guardian of the minor defendants and it was not for the disposal of the case. In another case in this Court, in Sripati Saran Prasad Singh v. Indarjit Mahton (''39) 26 AIR 1939 Pat. 160 it was held that where the Munsif calls upon the plaintiff to file process fees and copies of the plaint by a certain date, but on that date nothing is done, and the suit is dismissed, that order is illegal inasmuch as the Munsif had no power to require a plaintiff to file process fee before fixing a date for the appearance of the defendant. It was pointed out there that the proper course was to fix a date for the appearance of the defendant and directing the plaintiff to file process fees within a reasonable period short of that date. In the opinion of the learned Judge the suit could not have been dismissed on the date fixed for filing the process fees; but if the plaintiff had defaulted, the suit could then have been dismissed on the date fixed for the defendant''s appearance if the defendant had failed to appear. In an unreported Single Judge decision of this Court in Ram Ranbijaya Prasad Singh v. Achariya Kumar Tewari Civil Revn. No. 597 of 1940, a different view was taken but all the decisions referred to above do not seem to have been before the learned Judge.

Now looking at the various dates in the order sheet and the authorities referred to above, it is clear that 29th July 1940 and 1st August 1940 were not dates fixed for hearing: these two dates were fixed merely for proof of service. If that proof was not forthcoming, steps could be taken under Order 9, Rule 5, and after fixing a date for hearing if the plaintiff still defaulted, then the suit was liable to be dismissed. I am, therefore, of opinion that the lower Court acted illegally in dismissing the suit on the date it did. I would allow the application and send back the case to the Court below to be restored to the file and disposed of in accordance with law. The applicant is entitled to his costs, hearing fee two gold mohurs.

Rowland, J.

I agree.