P L D 1963 Azad J & K 79 (PLP)

55 I C 966 ; 57 I C 75 and P L D 1950 B J 46 distinguished. Ghulam Hussain Shah for Petitioner. Sh. Abdul Haiy for Respondents. 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 the parties to appear at the first hearing of the suit while Order XVII, rule 2 dealt with their failure to appear at the adjourned hearing of the quit. It was pointed out that in this case the hearing on 3‑12‑62 was not the first hearing in the suit but a hearing to which the suit had been adjourned, the plaintiff having already finished his evidence and therefore Order XVII, rule 2, was the proper provision applicable to the suit. It was further pointed out that in view of the clear language of Order XVII, rule 2 it was discretionary with the trial Court either to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thought fit. I think there is great force in the argument advanced by the learned counsel for the respondents. The language of Order XVII, rule 2 is plain and a Court can easily know how it can proceed in case of failure of the parties to appear before it at the adjourned hearing of the suit. The Court can in such case either dismiss the suit in default of appearance of the party under Order IX, rule 8 or make such other order as it thinks fit. Such other order clearly includes the possibility of giving a finding on merits in case there is sufficient material on the record to enable the Court to give such a finding or to adjourn the suit. In the present case the trial Court preferred to adjourn the suit to enable the plaintiff to put in appearance. Unless it was shown that this order of the trial Court was an arbitrary order there is no reason for this Court to interfere in revision. The record shows that the plaintiff had finished his evidence and now it was the turn of the defendants to lead evidence. On 3‑12‑1962 when the case was called the plaintiff did not appear and the Court adjourned the hearing to 18‑2‑1963 and ordered notice to be issued to the plaintiff to appear on that date. This order can in no way be termed as an order wherein the trial Court had exercised a jurisdiction not vested in it by law. It is a different thing if this Court does not see eye to eye with the order passed by the trial Court but as long as the trial Court has exercised its discretion in a judicial manner the order does not call for any interference by this Court. The authorities produced by the learned counsel for the petitioner are distinguishable. In 55 I C 966, the point involved before his Lordship of the High Court was whether in the absence of the plaintiff the trial Court could record the statement of the defendants and decree the claim in part and it was held that it had no jurisdiction to record defendant's statement and to decree the claim in part. In 57 I C 75, the chief point before his Lordship of the Patna High Court was whether the Appellate Court had power in appeal in which the appellant had failed to appear to enter into the merits of the case and to decide the case on merits and it was held that it could decide the appeal on merits. In P L D 1950 B J 46, the provisions of Order XVII, rule 2 were not discussed and the attention of their Lordships was mainly directed to the provision of Order IX, rule

8. In the circumstances the revision petition is dismissed with costs. K. B. A. Petition dismissed.