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2012 DIGILAW 290 (UTT)

Narendra Singh v. Ghanshyam Singh

2012-06-15

V.K.BIST

body2012
JUDGMENT : Heard learned counsel for the petitioner. Plaintiff/petitioner filed Suit No.85 of 2007 “Narendra Singh Vs. Ghanshyam Singh & others” in the Court of Civil Judge (J.D.), Rudrapur, Udham Singh Nagar for permanent injunction against the respondents/defendants. The case was listed for hearing on 15.05.2012, on which day, none of the parties appeared before the Court below. On that day, the case was called out repeatedly, but when none appeared for the parties, the Civil Judge (J.D.), Rudrapur dismissed the suit of the plaintiff/petitioner for non-prosecution. Thereafter, the plaintiff/ petitioner moved an application under Order 9 Rule 4 of the C.P.C. for recalling the order-dated 15.05.2012 and for restoring the suit to its original number. The said application was heard by the Civil Judge (J.D.), Rudrapur on 22.05.2012, but the learned Civil Judge issued notices to the respondents for filing objection and fixed 31.07.2012 for objection/disposal of the said application. Against the order dated 22.05.2012 passed by the Civil Judge (J.D.), Rudrapur, petitioner has approached this Court. The submission of the learned counsel for the petitioner is that in application filed under Order 9 Rule 4 of the C.P.C., there is no need to issue notice to the other side. He contended that the Civil Judge (J.D.), Rudrapur erred in issuing notice to the opposite party and submitted that the Civil Judge should have decided the application filed by the plaintiff/petitioner under Order 9 Rule 4 of the C.P.C. on that day itself. In support of his submission, he relied upon the judgment reported in A.I.R. (32) 1945 Nagpur 185 “Ramchandra Ramaji Khatik and others Vs. Sahadeo Gopala Koshti and others”. I have considered the submission of the learned counsel for the petitioner. Few provisions of C.P.C. are necessary for deciding the issue involved. Order IX Rule 3 of the C.P.C. provides that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. Sahadeo Gopala Koshti and others”. I have considered the submission of the learned counsel for the petitioner. Few provisions of C.P.C. are necessary for deciding the issue involved. Order IX Rule 3 of the C.P.C. provides that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. Order IX Rule 4 of the C.P.C. provides that where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in Rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. But separate provisions have been made in the case where one of the parties appears, Order IX Rule 14 of C.P.C. provides that no order made under Rule 8 and Rule 13 of Order IX shall be set aside without notice to the other side. These two rules apply to a case in which order has been passed against one party in the presence of the other party. Thus, from reading of Rule 4 of Order IX, it is clear that where a suit has been dismissed because neither party has appeared when case was called for hearing, the order may be set aside without notice. In the present case dismissal was in the absence of both the parties. Nothing is stated in Order IX Rule 4 of C.P.C. about issuance of notice to the other side. In my opinion, in such situation, no notice is required to be sent to the other side. The other side is only entitled to a notice of hearing of the case after restoration. The Civil Judge (J.D.), Rudrapur should have considered the application filed by the plaintiff/petitioner under Order IX Rule 4 of the C.P.C. on its own merit. In view of above discussion, the writ petition is disposed of with a direction to the Civil Judge (J.D.), Rudrapur to decide the application filed by the plaintiff/petitioner under Order IX Rule 4 of the C.P.C. on the next date fixed i.e. on 31.07.2012 on its own merit. In view of above discussion, the writ petition is disposed of with a direction to the Civil Judge (J.D.), Rudrapur to decide the application filed by the plaintiff/petitioner under Order IX Rule 4 of the C.P.C. on the next date fixed i.e. on 31.07.2012 on its own merit. Interim relief application (CLMA No.5480 of 2012) also stands disposed of.