Law: Civil Procedure Code (V of 1908)

Section: 115,151,3

Law: Specific Relief Act, 1877

Section: 42,31,54

Civil Procedure Code, 1908 (V of 1908)-- ----Ss. 115, 151 O.XLIII R. 3--Specific Relief Act, (I of 1877), Ss. 42, 31 54--Suit for declaration, perpetual injunction and correction of mutation entries--Dismissed in default--Application for restoration of suit--Dismissed--Filing of another application--Dismissed--Appeal--Dismissed--Period of limitation--Direction to--Perusal of record reveals that after conclusion of trial, case was fixed for final arguments as per order sheets maintained by trial Court--On said date, attorney for petitioners along with counsel appeared before Court, but Presiding Officer was on leave, therefore case was adjourned through note of reader of Court--On said date counsel for respondents was present, but none appeared on behalf of petitioners, therefore suit was dismissed for non-prosecution--Three main questions have cropped up before this Court, which are (i) whether case adjourned by note of Reader of Court can be termed as a date of hearing (ii) whether suit can be dismissed in default when same was fixed for final arguments and (iii) whether application filed by petitioners for restoration of suit was barred by time--Period of limitation for application for restoration of suit in such eventuality is governed by Article 181 and not by Article 163 of Limitation Act, 1908--After dismissal of application for restoration of petition petitioner filed another application under Section 151 C.P.C. for restoration of suit which was within three years period prescribed under Article 181 of Act thus, same could not be held as barred by law of limitation--It is stated that case was fixed for final arguments and entire evidence of parties has been recorded--Thus, case was ripe for --For sake of arguments if it is presumed that when trial Court itself fixed case for hearing, then it could have taken action under Order XVII, Rule 3 C.P.C. and should not have dismissed case under Order IX, Rule 8, C.P.C.--Dismissal of suit for non-appearance at such a stage was held wholly not warranted and entire labor and expense of many years could not be allowed to go waste--Only proper course in such circumstances was either to fix another date for hearing of…

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