P (PLP)

ORDER.‑--This judgment shall dispose of the two connected revision Hafiz Ghulam Ahmad V. Mst. Shah Bibi and Hafiz Ghulam Siddique v. Mst. Shah Bibi as the point involved in both the petitions is one and the same. Two pre‑emption suits were filed by Mat. Shah Bibi one against Hafiz Ghulam Ahmad and Shahban Khan and the other against Hafis Ghulam Siddique and Abdur Rahman Khan. In the former suit in which Shabban Khan was a defendant an order was recorded on 4th of August 1949, directing the plaintiff to put in a correct address of Shahban Khan who had not been served, and the case was adjourned to 9th of August 1949. On 9th of August 1949 the plaintiff and her Mukhtar were absent while the defendant was present. The Court instead of proceeding under O. 9 R. 8 adjourned the case for the next day to wait for the plaintiff or her Mukhtar. On 10th of August 1949 no appearance was put in on behalf of the plaintiff', the defendant being present the Court passed no order under O. 9 R. 8 but adjourned the case for 11th of October 1949 directing summons to be issued for the appearance of the plaintiff. In the other case in which Hafiz Ghulam Siddique was a defendant. the case was fixed for 9th of August 1949 to frame issues. Plaintiff did not appear nor her Mukhtar on that day. This case too was adjourned for the 10th of August 1949. On that day neither the Mukhtar nor the plaintiff appeared while the Mukhtar of the defendant was present. Instead of proceeding under O. 9 R. 8 Civil Procedure Code in that case as well as the Court passed a similar order as was passed in the other case for summoning the plaintiff: The order dated 8th and 10th of August 1949 in both the suits are therefore the subject‑matter of revision before this Court. The learned counsel for the petitioner contention is that the Court was bound to proceed under O. 9 R. 8 on the 9th of August 1949 against the plaintiff and to dismiss both the suits. O. 9 R. 8 reads :‑ "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder". Mr. Mustafa Khan contended that in both the cases the plaintiff or her Mukhtar were absent on 9th of August 1949 while .the contesting defendant was present. The Court had no justification to adjourn the cases to 10th of August 1949. The plaintiff or her Mukhtar did not take advantage of the unjustified favour exercised in her favour by Malik Abdul Rashid, Sub‑Judge and did not appear on the 10th of August 1949 but the learned Sub‑Judge still did not consider it his duty to proceed in accordance with law. He deliber ately passed an order which could in no manner be supported by any provision of the Civil Procedure Code. The contention of the petitioner therefore that Malik Abdul Rashid was influenced, by some extraneous reasons is established on the file without the least hesitation. It is extremely regrettable that the judicial officer of his standing should behave like that. The learned counsel on behalf of the respondent tried to justify the orders of the Court but without any reason. Mr. Salim's contention is that the cases fixed for 9th of August 1949 did not fall within the purview of O. 9 R. 8 as they could not be called to have 'been fixed for the hearing and for this he sought help from the note appearing on page 1729 of the Civil Procedure Code by Chitaley which is based on le

1. C. 313 and 1924 Pat.

714. Both the rulings are inapplicable to the present ease. In the case quoted as 10 I. C. 313 Demisahai Chaudhri v. Mst. Saraswati, the hearing of the suit was fixed from 25th July and an application by the plaintiff to appoint & guardian ad litem for a defendant who had died was fixed for the 16th July. The plaintiff and his Pleader failed to appear on the latter day, and the Court dismissed the‑suit for want of prosecution. It was held that as the date on which the plaintiff did not appear was not the date fixed for the hearing of the suit itself, the order dismissing the suit was illegal. Now this is not the case in the suit brought by Mst. Shah Bibi: against Hafis Ghulam Ahmad. In that case only one date was fixed and that was for the hearing of the suit as the defendant had to appear and the plaintiff had to put in an address of the other defendant in the suit. The other ruling that is 1924 Pat. 714 on the face of it is hot applicable. There the case was of the application of Order 17 Rules 2 and

3. I am therefore of opinion that the Court had no justification to adjourn the case against Hafiz Ghulam Ahmad from 9th of August 1949 to 10th of August 1949 and again from 10th of August 1949 to 11th of October 1949. The proper course was to proceed under O. 9 R. 8 Civil Procedure Code and to dismiss the suit in the absence of the plaintiff. As regards the other petition regarding the suit against Hafts Ghulam Siddique the position was still worse for the plaintiff. There the learned counsel for the respondent cannot support the order when for the reasons which were advanced by him in the other petition. The record of that case would show that 9th of August 1949 when the plaintiff and her Mukhtar were absent, the case was fixed for framing issues. The Court had no‑discretion to adjourn the case to the next day. The provision of O. 9 R. 8 was imperative and the suit should have been dismissed. When the plaintiff anti her Mukhtar were absent on 10th of August 1949 the Court bad again no jurisdiction to, maintain the case on its file. These cases are an instance of the clear disregard of the simple but imperative provisions of law and I cannot but express my resentment against the conduct ref this Sub‑Judge. He had failed to exercise the jurisdiction vested in him and had exercised the jurisdiction not vested in him by law. I therefore accept both the revision petitions and dismiss both the suits of Mst. Shah Bibi. The peti tioner shall be entitled to his costs throughout. A.H Petition accepted.