JUDGMENT : ( 1. ) THE defendants are aggrieved by an order passed by the trial court whereby the suit instituted by the non-petitioner has been restored. On november 3, 1969 the suit was dismissed for non-appearance of the plaintiff. That date had been fixed for framing of issues. On November 18, 1969, the plaintiff made an application under Order 9, Rule 9, Civil Procedure Code for restoration of the suit stating that on the 3rd November 1969 he was suddenly down with fever and his counsel was busy in another Court when the case was called on for hearing. In support of his application, the plaintiff filed his affidavit. The defendants opposed the application for restoration. ( 2. ) THE trial Court did not record any evidence but on the above material ordered restoration of the suit. It has observed that there was sufficient cause for non-appearance of the plaintiff. It has made a specified mention of the fact that the date on which the suit was dismissed was for framing of issues. He did not award costs to the defendants. ( 3. ) IN this revision, Shri M. M. Jain, learned counsel for the defendants contends that the order of the trial Court is invalid, and not in accordance with law. No reasons are given in the impugned order. The date for framing of issues was a "date of hearing" and it was obligatory for the plaintiff to appear on that date. There was no legal evidence to support the plaintiffs case for non-appearance. The affidavit filed by the plaintiff was no legal evidence. It was merely for the prima facie satisfaction of the trial Court. The learned counsel has relied on several decisions of this Court. Suffice to mention three of them: -Mithailal Gupta v. Inland Auto Finance ( 1967 MPLJ 776 = air 1968 MP 33 ), Anand Swaroop v. Kishanchand (1961 MPLJ Note240=1961 JLJ 1239) and E. S. I. Corporation v. Harcharansingh (1969 MPLJ 550=1969 JLJ 725 ) ( 4. ) AS legal propositions all the three contentions are right. It is true that a date which is fixed for framing of issues is a date of hearing within the meaning of Order 9, Rule 8 or Order 17, Rule 2 of the Code of Civil Procedure. ) AS legal propositions all the three contentions are right. It is true that a date which is fixed for framing of issues is a date of hearing within the meaning of Order 9, Rule 8 or Order 17, Rule 2 of the Code of Civil Procedure. Therefore, when the plaintiff does not appear, the suit can be dismissed for default, and if the defendant does not appear, the Court can proceed ex-parte. The remedy open to the plaintiff or the defendant, as the case may be, is provided in Older 9, Civil Procedure Code. It is. however, worthy of note that if a date so fixed is a date to which the hearing of the suit was adjourned within the meaning of Order 17, Rule 2, Civil Procedure Code, the Court has also discretion to make such other order as it thinks fit. The Court is not bound to dismiss the suit. For instance, the Court can frame issues and inspite of nonappearance of a patty or both the parties, fix another date for evidence, or other steps which may be necessary. The Court may even adjourn the hearing simpliciter, fixing another date for framing of issues. In such a case, it will be the duty of the parties to find out what order was passed by the Court and whether issues were framed by it and what steps they have to take in compliance with the directions of the Court. A party who does not appear on the date of hearing is not entitled to any fresh notice or intimation from the Court and if on the next date so fixed any party does not appear, it has to suffer adverse consequences. ( 5. ) WHEN the Court has before it two alternative courses open, on the one hand, to dismiss the suit or to proceed ex-parte because of non-appearance of the plaintiff or defendant, as the case may be, or, on the other hand, to frame issues and fix another date for evidence or to adjourn the hearing for framing of issues, the Court has certainly to exercise its discretion judicially having regard to the existence of the facts and circumstances of the case. ( 6. ) THE duty of framing issues is primarily of the Court. It is an important responsibility because the trial rests on the issues. ( 6. ) THE duty of framing issues is primarily of the Court. It is an important responsibility because the trial rests on the issues. When a date is fixed for framing of issues, it is duty of the Court to frame issues on that very date and not postpone this function to another date. When it is the Court which has to discharge that function there can be no justification for postponing it except in extraordinary and unforeseen circumstances beyond the control of the presiding officer of the Court, otherwise, the Court is considered to have shirked its duty. By not framing issues on the date fixed for in the Court unnecessarily causes waste of time, money and energy of the parties. It amounts to harassment to them which they do not deserve. This Court certainly looks upon as a serious lapse on the part of a subordinate judge when he postpones framing of issues to another date. Whenever such a lapse comes to the notice of this Court it forms a poor opinion of the presiding officer, and where more than two dates are fixed for framing of issues it should be inexcusable. Above all, if the Court does not frame issues when the parties appeared, and, on the next date fixed for framing of issues if it dismisses the suit for non-appearance of the plaintiff or proceeds ex-parte for nonappearance of the defendant, it must be said that the Court acts arbitrarily and capriciously and such a coarse is anything but judicial. It is the duty of this Court in exercise of its powers of superintendence to see that no subordinate Court acts in that manner. ( 7. ) BOTH under Rule 9 and Rule 13 of Order 9, Civil Procedure Code the applicant must show that he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. And, sufficient cause can be made out to the satisfaction of the Court only on the basis of evidence. It cannot depend on any whim or fancy of the presiding officer. It is the duty of the court to give each of the parties reasonable opportunity to support or oppose the application. Recourse can also be had to Order 19, Rule 1, Civil Procedure code within its limitations. ( 8. It cannot depend on any whim or fancy of the presiding officer. It is the duty of the court to give each of the parties reasonable opportunity to support or oppose the application. Recourse can also be had to Order 19, Rule 1, Civil Procedure code within its limitations. ( 8. ) AS held in Mithailal Gupta v. Inland Auto Finance on which Shri Jain has relied, an affidavit in support of an application is merely intended to satisfy the Court prima facie that the averments in the application are true, so that the court may issue notice to the opponent. Such an affidavit can also be acted upon if the opposite party does not contest the application. It is a different matter if an affidavit is filed when the Court has taken recourse to the provisions of Order 19, Rule 1 of the Code of Civil Procedure, or if the parties agree that affidavits should be substituted for the evidence to be so recorded. Khandesh spinning and Weaving Mills Co. Ltd. v. R. G. K. Singh ( AIR 1960 SC 571 , Paragraph 9 ). ( 9. ) THE above discussion may be summed up thus : - (1) (a) On the date fixed for framing of issues, the Court MUST frame issues, and not fix another date for it. This is mandatory, and the Court must comply with it. The Court is bound to frame issues on that very date, and it MUST. To postpone framing of issues to another date is unwarranted and unjustified except in the circumstances beyond the control of the Court, such as illness of the Judge, or his absence otherwise. It is to be considered as an act of shirking ones duty. It further entails undue harassment to the parties, whose time, money and energy are unnecessarily wasted because of the laziness of the Court. (b) It is the duty of the parties to assist the Court in framing of issues. The Court can call upon them to assist it. It is to be considered as an act of shirking ones duty. It further entails undue harassment to the parties, whose time, money and energy are unnecessarily wasted because of the laziness of the Court. (b) It is the duty of the parties to assist the Court in framing of issues. The Court can call upon them to assist it. If either party does not respond the Court should make a note of it in the proceedings, so that if subsequently it complains that any issue has not been properly framed, or that issue has been left out which should have been framed, it can be a saddled with costs not only while rejecting the complaint as incorrect, but also while amending the issues if necessary. However, assistance or no assistance, the Court must frame issues on the date fixed for that purpose. (c) It is inexcusable if the Court having not framed issues on the preceding date which was fixed for that purpose inspite of the parties appearance, it dismisses the suit or proceeds with it ex parte on the next date fixed for framing of issues, because of non-appearance of the plaintiff or defendant respectively. (2) When the Court CAN do one of two things, and it has to choose which of them it SHOULD do, it must remind itself of the celebrated doctrine which has become axiomatic, that discretion must be exercised judicially. This is based on the principle that every thing which is permitted by Jaw is not necessarily right, and that it is the demand of discretion that due regard must be had to all the existing circumstances. The matter is different when the law peremptorily requires the Court to act in one particular way only. (3) (a) The date for framing of issues is a date of HEARING so that the suit CAN be dismissed for default, or, CAN be proceeded with ex-parte, as the case may be. The Court CAN, but whether it SHOULD ? The power is there; but the question is one of propriety. (b) Notwithstanding non-appearance of a party or parties on the date fixed for framing of issues, the Court has also the power under Order 17, rule 2, Civil Procedure Code (whether that Rule applies):- (i) to frame issues on that date and fix another date for evidence etc. The power is there; but the question is one of propriety. (b) Notwithstanding non-appearance of a party or parties on the date fixed for framing of issues, the Court has also the power under Order 17, rule 2, Civil Procedure Code (whether that Rule applies):- (i) to frame issues on that date and fix another date for evidence etc. ; or, (ii) to adjourn the hearing and fix another date for framing of issues. In either case it will be no duty of the Court to intimate the absent party or parties of the next date of hearing. No party will be heard to say that it had no intimation from the Court. It will be the duty of the parties to inform themselves of the next date of hearing and to take necessary steps incompliance with the directions of the Court contained in that order, otherwise suffer the consequences. And, if the Court has framed the issues, it will also be the duty of the parties to inform themselves of the issues so framed. (4) (a) Where an application for restoration of the suit or for setting aside an ex-parte decree is contested, the Court can be satisfied of the "sufficient cause" within the meaning of Rule 9 or Rule 13 of Order 9, Civil procedure Code only on the basis of evidence but not on whim or fancy. (b) It is the duty of the Court to give the parties reasonable opportunity to produce evidence instead of straightaway hearing arguments, unless recourse is had to Order 19 of the Code of Civil Procedure, or, unless both the parties agree that the question may be determined on affidavits. (5) An affidavit which accompanies an application is intended merely for prima facie satisfaction of the Court that the averments in the application are true so that the Court may issue notice to the opponent and the Court may act upon it if the opposite party contests the application. Otherwise, an affidavit can be acted upon only if recourse has been had to the provisions of Order 19, Rule 1, Civil Procedure Code or when both the parties agree that affidavit should be substituted for the evidence to be recorded. ( 10. ) I shall now proceed to consider the particular facts of the present case in the light of the above propositions. ( 10. ) I shall now proceed to consider the particular facts of the present case in the light of the above propositions. (i) The trial Court had fixed July 2, 1959, for framing of issues. On that date it had made a note that no documentary evidence was filed. The date (July 2, 1969) had been fixed only for the purpose of framing of issues and for nothing else. On July 2, 1969, the Court did not frame issues, but fixed August 4, 1969. Again it did not frame issues on August 4. 1969, but fixed September 3, 1969, for framing of issues and also for hearing the application of Defendant No. 1 under Order 13, Rule 2, Civil Procedure Code which had been filed on April 4, 1969. On September 3, 1969, again the court did not frame issues, but merely observed that it was busy with other matters, and fixed November 3, 1969. On the last mentioned date, the court recorded non-appearance of the plaintiff and dismissed the suit for default. Thus it is obvious enough that three successive dates were fixed for framing of issues and the plaintiff appeared on each of these dates (2-7-1969, 4 8-1969 and 3-9-1969), but the Court did not frame issues, for no fault of the plaintiff and rather entailing undue waste of his time, money and energy. On the very first occasion of the plaintiffs non-appearance (i. e. on 3-11-1969), the Court dismissed the suit for default even when it was merely for framing of issues. Undoubtedly, the Court acted arbitrarily and capriciously. It shirked its duty and utilised the opportunity as a convenient mode of "disposal" of the suit. In my view, it amounted to dereliction of duty. This by itself would have persuaded me to redress the wrong and set aside the order of dismissal of the suit by exercising the powers under section 115, Civil Procedure Code suo motu. (ii) However, it appears that the learned presiding officer realised his mistake and rightly restored the suit on the plaintiffs application. The fact that he did not impose costs fortifies this inference. (iii) In his application for restoration of the suit, the plaintiff, apart from pleading his illness, stated that his counsel was busy in another Court. (ii) However, it appears that the learned presiding officer realised his mistake and rightly restored the suit on the plaintiffs application. The fact that he did not impose costs fortifies this inference. (iii) In his application for restoration of the suit, the plaintiff, apart from pleading his illness, stated that his counsel was busy in another Court. It is a matter of common experience that counsel sometimes while busy with other important matters tells himself that he would note down the issues later on when he is comparatively free. In the present case, it was not as if the Court had sent for the counsel particularly and still he did not turn up. The minutes show that the case was repeatedly called on for hearing and dismissed for non-appearance. (iv) After the restoration of the suit by the impugned order, and even after this revision was admitted for hearing as back as on February 19, 1972, the defendants did not apply for stay of the proceedings of the trial Court, with the result that the trial has gone long ahead. The plaintiffs evidence has been closed, and now September 22, 1975, is fixed for the defendants evidence. ( 11. ) ON the above facts and in the above particular circumstances I shall not interfere in revision. ( 12. ) THE revision is dismissed. There shall be no order for costs. The record shall be returned to the trial Court within 5 days from today. Revision dismissed.