Sattan vs XIth A.D.J. and Others

S.U. Khan, J.—Xth Munsif, Varanasi, decreed O.S No. 850 of 1983 ex parte on 16.5.1986. The said suit had been filed by Hari Nath respondent No. 2 against respondent Nos. 5, 3, 4 and petitioner u/s 6 of Specific Relief Act claiming possession on the basis of dispossession within six months before institution of the suit. Thereafter petitioner filed restoration application. The restoration application was allowed by learned Munsif on 12.2.1988. Against the said restoration order Hari Nath plaintiff respondent filed Civil Revision No. 98 of 1988. XIth A.D.J. Varanasi, through judgment and order dated 12.1.1989, allowed the revision and set aside the restoration order, hence this writ petition.

Petitioner in his restoration application stated that he was not aware of pendency of the suit and no summon was served upon him. Trial court clearly held that summon was sufficiently served upon the petitioner and he had also filed the written statement. However, trial court held that 21.4.1986 was the date fixed in the suit for disposal of objections on Amin''s report and on the said date issues No. 3 and 5 were decided and it was ordered that the suit be heard ex parte and 13.5.1986, was fixed for ex parte hearing. On 13.5.1986, ex parte evidence of the plaintiff was taken, argument was heard on 14.5.1986 and ex parte judgment was delivered on 16.5.1986. According to the learned Munsif as 21.4.1986 was not the date fixed for hearing of the suit hence order that suit be heard ex parte could not be passed on the said date in terms of Order IX, Rule 6, C.P.C. Order IX, Rule 6, C.P.C. ipso facto applies only when defendant does not appear on the first date. However, if the defendant has appeared and thereafter absented himself then Order XVII, C.P.C. particularly Rule 2 thereof covers the position. By virtue of Order XVII. Rule 2 "where, on any date to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or makes such other order as it thinks fit."

Even under Order IX, Rule 6, C.P.C. is not mandatory that if on the date of hearing defendant is absent first an order to the effect that the suit be heard ex parte should be passed and then some other date for ex parte hearing should be fixed. Both the things may simultaneously take place, i.e., on the same date order for proceeding ex parte may be passed and ex parte hereing may be held.

It is correct that a date fixed for disposal of objections of Amin''s report is not a date fixed for hearing. Accordingly 21.4.1986 was not the date fixed for hearing hence on the said date suit could not be decided ex parte. However suit was not decided on 21.4.1986. The only order passed on the said date was that suit should proceed ex parte and 13.5.1986 was fixed for ex parte hearing. The said order may very well be taken to be an order fixing 13.5.1986 for hearing. Defendant was fully entitled to apply for recall of order dated 21.4.1986 until 13.5.1986 in terms of Order IX, Rule 7, C.P.C. however defendant did not appear till then.

Even if it is assumed that under Order IX, Rule 6, C.P.C., it is essential that firstly the date on which defendant is absent shall be a date of hearing and secondly on the said date only order to proceed ex parte shall be passed and some future date for ex parte hearing should be fixed still under Order XVII, Rule 2, it is not mandatory vide B. Chakraborty v. B. Chakraborty AIR 2004 Cal 1998 . Under Order XVII, Rule 2 the Court has been given discretion by using the words "or makes such other order as it thinks fit". The Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, has held that these words confer a very wide discretion upon the Court.

Accordingly I do not find any error in the Judgment and order passed by the revisional court. The revisional court rightly held that hearing means application of mind by the Court and it need not be final hearing. Apart from it the course adopted by the trial court while decreeing the suit ex parte was in consonance with Order XVII, Rule 2, C.P.C. as held by me in the earlier part of this Judgment.

There is no merit in the writ petition hence it is dismissed.