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2005 DIGILAW 1330 (RAJ)

Shanti Lal v. Mukna Ram

2005-05-05

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-This second appeal by the plaintiff in a suit for specific performance is directed against the Judgment and decree dated 08.03.1983 passed by the District Judge, Pali in Appeal No. 21/79 whereby the learned Judge held the appeal preferred by the plaintiff-appellant against the order dated 30.04.1979 passed by the trial Court to be not maintainable and dismissed the same. 2. The order dated 30.04.1979 passed by the learned trial Court in Civil Suit No. 10/1978 which is the bone of contention in the present appeal on the question whether a regular appeal under Section 96 of the Code of Civil Procedure (CPC) was maintainable against the said order or not, reads as under:- “30.04.1979 odhy i{kdkj gkftjA oknh Lo;a ,oa mldk dksbZ xokg gkftj ughaA u fiNyh rkjh[k ij yxkbZ xbZ Costs gh vnk dh xbZ gSA odhy oknh Jh lEirjkt No instructions plead djrs gSA vr% mldh kgknr lekIr dh tkrh gSA okn ds i{k esa bl izdkj dksbZ kgknr u gksus ds dkj.k nkok [kkfjt fd;k tkrk gSA mDr ifjfLFkfr;ksa esa nksuksa i{k viuk&viuk [kpZ Lo;a ogu djsaxsA vkns’k lquk;k A” ] 3. The aforesaid is obviously an order of dismissal of the suit. The question is, whether it would be deemed to be a disposal under Order 17 Rule 2, CPC; or a decision under Order 17 Rule 3, CPC? The only substantial question of law on which this appeal has been admitted reads thus:- “Whether the learned appellate Court was wrong in holding that the appeal under Section 96, CPC was not maintainable?” 4. The sole relevant aspect in this case remains that if the aforesaid order dated 30.04.1979 could be deemed to be a dismissal of the suit on merits and the dismissal is referable to Order 17 Rule 3, CPC as the learned Counsel for the appellant contends, a regular appeal against the same was maintainable; however, if this amounts to dismissal under Order 17 Rule 2, CPC read with Order 9 Rule 8, CPC as the learned Appellate Judge has held and as learned Counsel for the respondents contends, then obviously, it was not a decree and not appealable under Section 96, CPC. A brief reference to the pleadings and the proceedings would suffice. Pleadings and Issues 5. A brief reference to the pleadings and the proceedings would suffice. Pleadings and Issues 5. The plaintiff Shanti Lal filed a suit for specific performance of agreement against the defendants Mukna Ram and Moti Ram with the averments in the plaint that the defendants agreed to sell their khatedari land as described in Para 1 of the plaint to the plaintiff on 22.06.1972 for Rs. 6,000/-and after receiving the entire sale consideration delivered the possession of the land to the plaintiff . However, as the requisite stamp was not available that day, therefore, the defendant agreed to execute the regular sale-deed and an agreement to sell was executed by them on 22.06.1972 itself and got attested by the Tehsildar, Jaitaran. The plaintiff alleged himself to have always been ready and willing to perform his part of the agreement but the defendants were seeking to retract out of the contract and were not prepared to execute the sale-deed and were entering into quarrels, therefore, this suit for specific performance was submitted. The plaintiff prayed for a decree of specific performance for execution of the sale-deed from the defendants regarding the land in dispute. The plaint aforesaid was presented by the plaintiff on 30.06.1975 stating that the suit was within limitation because for summer vacations of the Court from 01.06.1975 to 29.06.1975. 6. The defendants in the written statement totally denied having ever entered into any agreement with the plaintiff or receiving any amount from him or getting the agreement executed and attested. In the additional submissions, the defendants alleged that they had dealings and good relations with Nathmal S/o Pannalal. According to the defendants, later on, there were disputes with the said Nathmal regarding the amount due for which, said Nathmal got prepared two pro-notes, one in his own name and other in the name of Indrachand and filed civil suits which were pending. The emphasis in the written statement had been that this suit was also a creation of Nathmal. According to the defendants, when they had cordial relations with Nathmal, the defendant Mukna Ram purchased a stamp for the purposes of partition amongst the brothers and if in the name of partition, Nathmal has got prepared some document of sale and got it attested from the Tehsildar, the same was not binding on the defendants. According to the defendants, when they had cordial relations with Nathmal, the defendant Mukna Ram purchased a stamp for the purposes of partition amongst the brothers and if in the name of partition, Nathmal has got prepared some document of sale and got it attested from the Tehsildar, the same was not binding on the defendants. It has also been alleged that the land was of Hindu Undivided Family and could not have been alienated by the defendants who otherwise also were having no family need to sell the land. The defendants also alleged that the land was principal source of their livelihood and there was no occasion for them to sell their land on a meagre amount to the plaintiff . The defendants pointed out various other litigations between the parties and alleged the plaintiff to be guilty of inequitable conduct and latches, and that he has failed to take necessary averments under Section 16(c) of the Specific Relief Act. The defendants also alleged that alleged agreement has been scribed on the stamp paper on which the stamp vendor has given out the purpose for purchasing the stamp to be “mutual partition (Aapasi Bantwara)” which has been got altered and then the agreement has been intentionally made illegible so that neither it could be read nor the terms could be found out. 7. On the pleadings of the parties, the learned trial Court framed seven issues. Fundamentally, the issue No. 1 relating to the question of the existence of the agreement, payment of sale consideration and delivery of possession. was of the burden of the plaintiff . All other issues on the questions whether Nath Mal has got the document fabricated, whether the defendants were not entitled to alienate the khatedari rights, whether the agreement was unjust and unfair and whether the plaintiff has failed to take averments according to Section 16(c) Explanation 2 of the Specific Relief Act and as to whether the agreement was materially altered land inadmisible in evidence and, therefore, the suit was not maintainable, were all of the burden of the defendants. 8. 8. It may be noticed that although the suit was instituted on 30.06.1975 and issues were framed on 11.08.1976 but later on 21.09.1976, the plaintiff filed an application seeking temporary injunction, in respect of the land in question against the defendants alleging attempts of forcible dispossession of the plaintiff which application was replied by the defendants on 112.1976 alleging that they have never lost possession on the land in question and have continued to cultivate the same. It appears that the said injunction application continued to remain pending alongwith the suit proceedings. Proceedings in the suit. 9. The proceedings in the suit after framing of the issues show that on the first date i.e., 110.1976, the witnesses Chhagdan, Nath Mal and Shanti Lal were present who were ordered to remain present on the next date i.e., 111.1976. On 111.1976, the plaintiff was not present although the witnesses Chhagga and Nath Mal were present and the learned Counsel for the plaintiffs sought adjournment for getting the statement of witnesses recorded alongwith the statement of the plaintiff . A witness, Narayan Singh, although did not appear, but sent his stamp vending register of non-judicial stamps from 01.01.1972 to 14.07.1972 which was ordered to be placed on record. 10. On 19.01.1977, the case was adjourned at the request of the Counsel for the defendant to 16.03.1977, it was taken up on 17.03.1977 but no witness was present and the Presiding Officer was on leave. Then it was taken up on 19.05.1977 when witness Nath Mal and Chhagga were present with the plaintiff but adjournment was sought for illeness of the Counsel for the defendant. 11. On 20.07.1977 the case was adjourned at the request of the Counsel for the plaintiff wherein it was given out that because of rains, the plaintiff had not been able to present himself although, the witness Nath Mal was present. On 21.09.1977 the plaintiff was present and so also the witness Nath Mal but the matter was adjourned because of hearing of other cases, and the witnesses were bound down to appear on the next date on 111.1977. 12. On 111.1977 no witness was present and therefore, the witness Nath Mal was ordered to be summoned through bailable warrant. 13. On 21.09.1977 the plaintiff was present and so also the witness Nath Mal but the matter was adjourned because of hearing of other cases, and the witnesses were bound down to appear on the next date on 111.1977. 12. On 111.1977 no witness was present and therefore, the witness Nath Mal was ordered to be summoned through bailable warrant. 13. On the next date of hearing i.e., 13.02.1978, the witness Nath Mal was present but the plaintiff was again not present and the Counsel for the plaintiff again requested for examining the plaintiff first and was granted time therefor. On the next date i.e., 16.03.1978, the matter was again adjourned on the request of the Counsel for the plaintiff and no witness appears to have attended. On 17.05.1978 again no evidence of the plaintiff was present but learned Presiding Officer was not available, hence the case was adjourned to 15.07.1978. On this date the evidence of the plaintiff was not present but the matter was adjourned to 24.08.1978 at the request of the Counsel for the defendant and it appears that later in the day the plaintiff appeared who was directed to appear on next date. 14. On 24.08.1978 again no witness of the plaintiff was present and the Counsel for the plaintiff pointed out his omission to inform the witnesses, therefore, the matter was adjourned to 110.1978 with a warning to the plaintiff that no further opportunity would be granted. In the meantime the case was transferred to the Court of Civil Judge, Sojat from the original Court of Civil Judge, Pali Camp Sojat. On 110.1978, the plaintiff and the witness Nath Mal were present but for the learned Judge being not available, the matter was adjourned to 112.1978 when again no witness was present and therefore, plaintiff was directed to bring all the witnesses by himself on 11.01.1979. 15. On 11.01.1979 again no witness was present and the adjournment was sought on the ground of illness of the plaintiff but no certificate was placed before the Court, therefore, the Court did not find any sufficient ground for adjournment but granted plaintiff a chance for his evidence at a cost of Rs. 30/-. The Court also ordered that on the next date if the witnesses would be brought by the plaintiff , the statements would be recorded else no further opportunity would be granted. 30/-. The Court also ordered that on the next date if the witnesses would be brought by the plaintiff , the statements would be recorded else no further opportunity would be granted. Although on this date Nath Mal was present but the Counsel for the defendant objected against recording of his statement before the statement of the plaintiff . The case was fixed for plaintiff’s evidence on 15.02.1979. 16. It appears that on 15.02.1979, the learned Presiding Officer was on leave but no attendance of any witness has been recorded. It has although been recorded in the order-sheet dated 15.02.1979 that process fees and summons for plaintiff’s witnesses have been filed which have not been issued. This order-sheet had been drawn in the absence of the Presiding Officer with the obvious omission to look into the record inasmuch as on the previous date i.e., 11.01.1979 the Court had already ordered the plaintiff to bring all his witnesses by himself with the clear stipulation that on the plaintiff bringing the witnesses on the next date, their statements would be recorded else no further time would be granted. It is also seen from the record that on 11.01.1979, after passing of the order, the Counsel for the plaintiff moved an application and submitted process fees and summons for the witnesses. However, on this application, on 11.01.1979 itself , learned trial Judge passed the order that the application was presented after the case was adjourned and that the order regarding summoning of the witnesses has already been passed. This application was, therefore, filed. The said application alongwith order passed thereupon is at page D 24/1 of the record. 17. Thereafter, the matter was taken on 30.04.1979 when neither the plaintiff nor any of his witnesses was present. The cost imposed on the previous date had also not been paid. Learned Counsel for the plaintiff pleaded no instructions. In those circumstances, the learned Civil Judge passed the order, already quoted hereinabove, dismissing the suit, which is the bone of contention in the present case. Appeal under Section 96, CPC. 18. The plaintiff preferred an appeal against the aforesaid order dated 30.04.1979 under Section 96 of the Civil Procedure Code on 02.07.1979 before the District Judge, Pali submitting that the order in question was neither answering to the description of a Judgment as required by order 20 of the CPC nor was a speaking order. Appeal under Section 96, CPC. 18. The plaintiff preferred an appeal against the aforesaid order dated 30.04.1979 under Section 96 of the Civil Procedure Code on 02.07.1979 before the District Judge, Pali submitting that the order in question was neither answering to the description of a Judgment as required by order 20 of the CPC nor was a speaking order. The plaintiff contended that the suit related to the relief of specific performance of contract for sale of immovable property. The plaintiff has presented the witnesses on several occasions and was prosecuting the suit with all diligence. The witnesses of the plaintiff were present on 15.02.1979 also and no adjournment was sought, therefore, dismissal of the suit under Orcer 17 Rule 3 was contrary to law. It was also suggested that the plaintiff was unable to present himself on 30.04.1979 because of illness and the Counsel pleaded no instructions without any notice. The plaintiff prayed for setting aside of the order dated 30.04.1979 and for remanding the matter back to the trial Court. 19. It appears that on behalf of the defendants-respondents a preliminary objection was raised on the maintainability of the appeal in the absence of any copy of decree with it. The learned District Judge, Pali heard the parties in relation to this objection and it was pointed out by the Counsel for the plaintiff-appellant that the trial Court has not drawn the decree and no certified copy of the decree was made available for which the plaintiff cannot be held responsible. The learned District Judge passed an order on 07.02.1980 with the opinion that the order passed whether under Order 17 Rule 2 or under Order 17 Rule 3, CPC, the same was an appealable order and therefore, decree ought to have been drawn by the trial Court. The record was ordered to be sent back to the trial Court for drawing the decree and the appellant was directed to produce certified copy of the decree after the same was drawn by the trial Court. It appears from record that such decree, in compliance of the order passed by the District Judge, Pali was prepared and signed on 24.04.1980, copy whereof was applied on 23.05.1980, copy was obtained on 29.05.1980 and presented to the Appellate Court on 29.05.1980 itself . 20. It appears from record that such decree, in compliance of the order passed by the District Judge, Pali was prepared and signed on 24.04.1980, copy whereof was applied on 23.05.1980, copy was obtained on 29.05.1980 and presented to the Appellate Court on 29.05.1980 itself . 20. The learned District Judge heard the appeal on 19.02.1983 and has proceeded to dispose of the same by the impugned Judgment and decree dated 08.03.1983. It was contended before the learned Appellate Judge on behalf of the defendants-respondents that the order passed by the trial Court was an order under Order 9 Rule 8, CPC and therefore, the plaintiff ought to have adopted proceeding under Order 9 Rule 9, CPC and against the order in question an appeal could not be maintained. Second objection was raised that the appeal would be deemed to have been presented on the date the decree has been filed and on that date the appeal was barred by limitation, therefore, also the appeal deserves to be dismissed. 21. It was contended on behalf of the respondents-defendants that the presence of the Counsel would not be deemed to be a presence of the party as he had pleaded no instructions, therefore, Order 17 Rule 2, CPC would apply, and the impugned order would be deemed to have been passed under Order 9 Rule 8, CPC. Such contentions were opposed on behalf of the plaintiff-appellant with the submissions that as the trial Court has mentioned that the suit was being dismissed for want of evidence, therefore, it would be a decision on merits and would be deemed to have been passed under Order 17 Rule 3, CPC. 22. The learned Appellate Judge proceeded to construe the impugned order dated 30.04.1979 and found that the plaintiff was not present on the date of hearing and his Counsel only expressed want of instructions, therefore, his presence cannot be taken to be even a physical presence and, therefore, the plaintiff and his Counsel would be deemed to be absent. Moreover, in the order which has been passed, no issue has been decided and no decision on merit has been delivered and the Court only terminated the suit by writing that there was no evidence in favour of the plaintiff . Moreover, in the order which has been passed, no issue has been decided and no decision on merit has been delivered and the Court only terminated the suit by writing that there was no evidence in favour of the plaintiff . According to the learned District Judge, therefore, the said order would be deemed to have been passed under Order 9 Rule 8, CPC and against such order the plaintiff had the remedy only under Order 9 Rule 9, CPC. The impugned order could not be construed to be under Order 17 Rule 3, CPC, therefore, no appeal against the same could have been filed. The learned Judge was of opinion that as the appeal was not maintainable, therefore, the question of limitation was not required to be decided. On these considerations, the appeal was ordered to be dismissed as not maintainable. Second Appeal before this Court 23. The plaintiff -appellant has preferred this second appeal against the Judgment and decree dated 08.03.1983 passed by the learned District Judge, Pali. This appeal was admitted on 01.08.1983 while formulating the aforesaid substantial question of law. .24. Learned Counsel for the appellant contended that the learned District Judge was in error in treating the first appeal to be not maintainable and was in error in holding that the order dated 30.04.1979 was an order under Order 9 Rule 8, CPC. The learned Counsel referred to the fact that in the impugned order it has been clearly mentioned that there was no evidence in favour of the plaintiff and therefore, the suit was being dismissed. According to the learned Counsel, the order clearly shows that the learned Judge of the trial Court did not dismiss the suit on account of absence of the party but .dismissed it for want of evidence. Hence, the order would be deemed to be one under Order 17 Rule 3, CPC. The learned Counsel submitted that it was not relevant to see as to what the trial Court ought to have done but what is important to see is as to what the trial Court has in fact done. Hence, the order would be deemed to be one under Order 17 Rule 3, CPC. The learned Counsel submitted that it was not relevant to see as to what the trial Court ought to have done but what is important to see is as to what the trial Court has in fact done. According to the learned Counsel had the suit being dismissed in default of appearance, the construction as put by the Appellate Court would have been correct but the Court having chosen not to do so, the valuable right of the appellant of filing appeal ought not to have been denied. Learned Counsel relied upon Ganga Das vs. Mst. Gopli, 1960 ILR Rajasthan 748 and Mohandas & Ors. vs. Ghisia Bai & Ors., JT 2001 (5) SC 263. 25. Per contra, the learned Counsel for the respondents contended with reference to the decision of this Court in the case of Balabux & Anr. vs. Sita Ram, AIR 1961 Rajasthan 88 that in absence of the party the suit could not have been decided on merits as provided under Order 17 Rule 3(b), CPC. As the Counsel for the plaintiff pleaded no instructions, the Court was required to and has proceeded under Order 17 Rule 2, CPC and the dismissal of the suit is clearly referable to Order 9 Rule 8, CPC and therefore, the only remedy for the plaintiff was to have applied under Order 9 Rule 9, CPC and the appeal was wholly misconceived. Learned Counsel also submitted that the order in question cannot be termed to be a Judgment or a decision on merits of the suit. There was no evidence available on record for which the suit could have been decided on merits. The learned Counsel also submitted that cost imposed on the earlier date had not been paid and, therefore also, the order could be construed only as termination of the suit proceedings as held by the first appellate Court and the question formulated in the present case deserves to be decided against the appellant. 26. The learned Counsel also submitted that cost imposed on the earlier date had not been paid and, therefore also, the order could be construed only as termination of the suit proceedings as held by the first appellate Court and the question formulated in the present case deserves to be decided against the appellant. 26. Learned Counsel for the appellant rejoined with the submissions that there was no occasion for payment of cost on 30.04.1979 because the plaintiff was unable to present himself to the Court on account of his illness, as pointed out before the first appellate Court and in the overall facts and circumstances of the case, the construction advancing cause of justice ought to be put on the impugned order holding the appeal to be maintainable. .27. Having heard learned Counsel for the parties at length and having scanned the entire record with reference to the law applicable, this Court is clearly of opinion that the substantial question of law deserves to be answered in the negative, that is to say that the Appellate Court was not in error in holding the appeal to be not maintainable. .28. Rule 2 and Rule 3 of Order 17, CPC provide as under:-“2. Procedure if parties fail to appear on day fixed-Where, on any day 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 make such other order as it thinks fit. “[Explanation-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit, is adjourned, the Court may, in its discretion proceed with the case as if such party were present.]” “3. “[Explanation-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit, is adjourned, the Court may, in its discretion proceed with the case as if such party were present.]” “3. Court may proceed notwithstanding either party fails to produce evidence, etc.-Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,- .(a) if the parties are present, proceed to decide the suit forthwith; or .(b) if the parties are, or any of them is, absent, proceed under Rule 2.]” 29. It may be clarified that provisions quoted hereinabove in parenthesis, i.e., Explanation to Rule 2 and the last part of Rule 3 were respectively inserted and substituted by the Code of Civil Procedure (Amendment), 1976 (hereinafter referred to as ‘Amendment Act of 1976’). Before the Amendment Act of 1976, the Explanation to Rule 2 was not available on the statute book and so far Rule 3 is concerned, it provided in place of the substituted Clauses (a) and (b) that the Court may notwithstanding such default, “proceeded to decide the suit forthwith”. 30. Before the Amendment Act of 1976, the Explanation to Rule 2 was not available on the statute book and so far Rule 3 is concerned, it provided in place of the substituted Clauses (a) and (b) that the Court may notwithstanding such default, “proceeded to decide the suit forthwith”. 30. It is also relevant to notice that by the said Amendment Act of 1976, Section 35-B was also added to the Code of Civil Procedure which reads as under:-“35-B. Costs for causing delay.-(1) If , on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit- (a) fails to take the step which he was required by or under this Code to take on that on that date, or .(b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of- .(a) the suit by the plaintiff , where the plaintiff was ordered to pay such costs, .(b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation.-Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs. .(2) Thecosts, ordered to be paid under Sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.” 1.31. Partinent it is to notice that these provisions, whether newly inserted Section 35-B or Explanation to Rule 2 of Order 17 or the substituted words of Rule 3 of Order 17, were all made applicable to the pending suit proceedings by virtue of Section 97 of the Amendment Act of 1976. The present suit, although having been instituted in the year 1975 would be governed by the aforesaid amended provisions of Order 17 Rule 2, Rule 3 and Section 35-B of the Code of Civil Procedure. 2.32. In the case of Ganga Das vs. Mst. Gopli (Supra), a Division Bench of this Court while dealing with the likely scenario emerging on account of passing of the orders in the like circumstances by the trial Court and the availability of remedy against the order so passed in the context of different eventualities laid down the following principles:- “The position of law which emerges out of the decisions of this Court, referred above, may be summed up as follows:- .(1) In a case, where on any day to which the hearing of the suit is adjourned (that is where the adjournment was not granted to any party to the suit) if the parties or any of them fail to appear, and the Court disposes of the case under Order XVII, Rule 2 the only remedy of the party is Order IX, CPC. .(2) If in the above case the Court by mistake applies Order XVII, Rule 3 and decides the case, when it ought to have proceeded under Order XVII, Rule 2, the aggrieved party may proceed under Order IX or file an appeal. In other words, the plaintiff may file an application for restoration and if the Court is satisfied that Rule 3 was wrongly applied and the restoration application is fit to be allowed, it may restore the case. It is also open in such a case for a party to file an appeal and it would be maintainable on the principle that the right of appeal depends on what the Court actually did and not on what it ought to have done and a party should not suffer for the mistake of the Court. It is also open in such a case for a party to file an appeal and it would be maintainable on the principle that the right of appeal depends on what the Court actually did and not on what it ought to have done and a party should not suffer for the mistake of the Court. .(3) If any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit for which time has been allowed and the party is present, and the Court proceeds to decide the case, the only remedy open is by way of appeal. .(4) Inthe circumstances mentioned in No. 2 even if the party is absent, the Court may decide the case under Rule 3 and if the case has been so decided, the remedy of the party will be only by way of appeal but if the Court has in its discretion applied Rule 2 and dismisses the plaintiff’s case only for default of his appearance, he may file an application for restoration.” 33. In the case of Balabux & Anr. vs. Sita Ram (Supra), the trial Court had passed the order in following terms,-“Plaintiff’s Counsel present-Plaintiff’s evidence is not present-the suit is therefore, dismissed for want of proof and may be consigned to record.” 34. The question before this Court was again about construction of the order. In the said case, the trial Court had constructed its order to be an order under