Law: Civil Procedure Code (V of 1908)

Section: O. IX, r. 8 & O. XVII, r. 2

Civil Procedure Code (V of 1908)----   ----- O. IX, r. 8 & O. XVII, r. 2-Non-appearance of plaintiff on adjourned hearing-Trial Court can either dismiss suit under O. IX, r. 8 or make such other order as it thinks fit-Court competent to adjourn suit to enable plaintiff to put in appearance-High Court will not interfere with such order in revision unless order is arbitrary.   55 I C 966 ; 57 I C 75 and P L D 1950 B J 46 distinguished.   JUDGMENT   This is a revision petition against the order of the Sub -Judge, Muzaffarabad, dated 3-12-62. The case was called by the Sub-Judge but the plaintiff failed to appear before the Court. On this date 4 witnesses of the defendants were present and their statements had to be recorded but because of the absence of the plaintiff this was not done. The learned Sub-Judge ordered issuance of notice to the plaintiff and his counsel for 18-2-1963. The defendants felt aggrieved of this order and have come up in revision and contend that the Sub-Judge should have proceeded under Order IX, rule 8 and dismissed the suit in default of appearance of the plaintiff. In support of this contention the learned counsel on behalf of the petitioner has produced 55 I C 966, 57 I C 75 and P L D 1950 B J 46. In 55 I C 966, his Lordship of Allahabad High Court held that where on the date fixed for the hearing of the case the plaintiff is absent and defendant appears, the Court is bound, under Order IX, rule 8, C. P. C. to dismiss the suit for default and has no jurisdiction to record the defendant's statement and to decree the claim in part. In 57 1 C 75, the same view was upheld even by his Lordship of the Patna High Court although such a question was not directly involved before his Lordship. In P L D 1950 B J 46, the view taken is that the provisions of Order IX, rule 8 are imperative and the Court has no juris diction to adjourn the case for appearance of the plaintiff or his mukhtar.   In reply it was stated by the learned counsel for the respondents that the present case was governed by Order XVII, rule 2, which was to be read along with the provisions of Order IX, and that Order IX dealt with the failure of…