P L D 1965 Azad J & K 18 (PLP)

ABDUL HAMID KHAN, C. J.‑Fazal Dad, the plaintiff petitioner, brought a suit for possession of the suit land by pre emption against the defendants on 1‑10‑1960, in the Court of Sub‑Judge, Bhimber on 9‑11‑1960. He was ordered by the Sub -Judge to deposit 1/5th of the purchase money with the Court till 19‑12‑1960. On 19‑12‑1960 as also on the following dates to which the case was adjourned, the plaintiff, according to the Sub‑Judge, Bhimber, failed to comply with the order of the Court. On 19‑4‑1961 when the suit was called for hearing, neither the plaintiff nor his counsel put in appearance with the result that the suit was dismissed for plaintiffs' default in appearance in the Court and also for his non‑payment of 1/5th of the purchase money. On 24‑4‑1964, the plaintiff moved an application under Order IX, rule 9, C. P. C. for restoration of the suit on the ground that on the date of dismissal of the, suit, he was ill and therefore, unable to attend the Court and that his counsel too was engaged in a case before the Tehsildar and could not put in appearance on his behalf. He, further, pointed out in his application that lie had on 19‑12‑1960 made an application to the Court for deposting Rs. 800 the 1/5th of the purchase money but due to the absence of the Presiding Officer on that date, his application could not receive attention of the trial Judge till 30‑1‑1961 when an order for depositing the money was passed by the Sub‑Judge. He prayed in his application that in view of these facts, his suit should be restored. The trial Court rejected his application for restoration of the suit on 24‑4‑1961, for the reason that the amount in question had not been deposited in time. Against this order of the Sub‑Judge, Bhimber, the plaintiff filed an appeal before the District Judge, Mirpur, who by his judgment dated 21‑3‑1962 dismissed his appeal and up held the order of the trial Judge. The plaintiff has now come in appeal to this Court. Two preliminary objections were raised:‑ (1) that the appeal was not competent, and (2) that even a revision petition was not competent for the following reason:‑ "that the plaintiff's suit was filed on 19‑4‑1961 by the trial Court not only for default of appearance of the plaintiff but also because the 1/5th of the purchase money had not been deposited by the plaintiff in time. This order of the trial Court was appealable and the plaintiff should have filed an appeal against this order and if he had done so, a second appeal to this Court would have been competent and that therefore, when a second appeal could have been filed, a revision petition was not competent." According to the learned counsel for the respondents, the application by the plaintiff made to the trial Court for restoration of his suit, was not competent as the remedy open to the plaintiff was to file an appeal against the order whereby the suit was dismissed. In reply the counsel for the plaintiff conceded that since he had filed an appeal to the District Judge against the order whereby his application for restoration of his suit was dismissed, he could only file a revision petition in this Court against the order of the District Judge, Mirpur. He, therefore, prayed that his appeal should be treated as a revision in case it was held that a second appeal was not competent. The question which needs determination is what remedy was open to the plaintiff when his suit was dismissed for default of his appearance and also for his default in depositing 1/5th of the purchase money in time. When the defendants appear and the plaintiff does not appear when the suit is called on for hearing, the provisions of Order IX, rule 8 are attracted and the Court shall make an order that the suit be dismissed unless the defendants admit the claim or part thereof in which case the Court shall pass a decree against the defendants 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. This provision of law is applied by the Courts at the first hearing of the suit. While Order XVII, rule 2 is applied by the Courts when the parties or any of them fail to appear at the adjourned hearing of the suit. In other words, the provisions of Order IX by themselves do not apply to a case in which a plaintiff or defendant has already appeared but has failed to appear at the adjourned hearing of the case. For such a case, the procedure has been laid down in Order XVII of the C. P. C. In the present case, there had been adjourned hearings and therefore, it can be said that Order IX, rule 9, would only be applicable as laid down in rule 2 of Order XVII. Rule 2 is reproduced below so that we may have a clear picture of the application of Order IX and rule 2 of Order XVII before us:‑ "Where on any date 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 any such order as it thinks fit." There is also rule 3 of Order XVII which governs a case wherein party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witness or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwith standing the default proceed to decide the suit forthwith. There might be cases where default under rule 3 of Order XVII is coupled with default under rule 2 of Order XVII as well. Thus a party to whom time has been granted at the first instance for doing one or other of the acts mentioned in Rule 3 may not only commit default in the doing of act but may not appear in person or by pleader. The question is what has the Court to do in such a case. On this question, there is divergence of opinion of the High Courts. This point was discussed at length by a Single Bench of this Court in Shamas‑ud‑Din v. Hassan Khan (P L D 1959 Azad J & K 8). In this case too, 1/5th of the purchase money had to be deposited by the plaintiff on a certain date but on that date the plaintiff not only failed to deposit the money but even absented himself. The relevant portion of that judgment is reproduced below to understand properly what view was taken in that case by the Single Bench of this Court:‑ "Majority of the High Courts are of the view that where there is material on record, a Court can proceed under rule 3 and come to a decision on merits (1943 Born. 321, 1933 Cal. 412 and 1924 Lab. 545 may be referred to). In the present case, the adjournment was specially granted for the purpose of depositing 1/5th probable value of the suit land and if it was not deposited in time the plaint could be rejected under section 21 (4) of the Jammu and Kashmir Prior Purchases Act (section 22 (4), Punjab Pre‑emption Act) and therefore, rule 3 was the proper rule applicable. In A I R 1944 Oudh 39, the dismissal of suit for non‑payment of costs of adjournment was held to fall under rule 3 of Order XVII, Civil Procedure Code. It was stated that default in appearance .by the plaintiff on the date of hearing when his suit was dismissed took the case out of the purview of rule 3, but this is not a correct inter pretation of rule

3. In the Authorities quoted above, the Bombay, Calcutta and Lahore High Courts applied rule 3 in spite of the default in appearance of the party. Rule 3 particularly empowers a Court to proceed in a certain manner when a party defaults in the performance of any act necessary for the further progress of the suit for which time had been allowed arid when the Court proceeds under this rule, it assumes the presence of the party (A I R 1939 All. 642 may be referred to in this connection). The Sub‑Judge was, there fore, right in dismissing the suit for default of the plaintiff to deposit 1/5th of the probable value of the suit land in time under rule 3, Order XVII, Civil Procedure Code." Thus it would be clear that the view of the Single Bench of this Court is that where the plaintiff who has been granted time to deposit 1/5th of the purchase money, not only fails to deposit the said amount but also defaults in appearance and his suit dismissed, the dismissal would be one under Order XVII, rule

3. We have carefully considered this Authority and have read and re‑read Order XVII, rule 2, and we feel that a case like this falls both under rule 2 and rule 3 of Order XVII. Rule 3 is rather stringent and should be applied only when the facts do not admit of the application of rule 2 of Order XVII. But where the facts of the case make the provisions of rule 2 applicable, the Court should act under rule 2, even though such facts can fall within the operation of rule

3. We have other reason also why we prefer to apply rule 2 instead of rule 3 of Order XVII. In this case the suit was dismissed on two grounds; namely; default in appearance by the plaintiff and default in depositing 1/5th of the purchase money on the fixed date. If rule 3 is applied the remedy open to the plaintiff would be by way of appeal and if he prefers an appeal there would be no material on record, for the appellate Court to decide whether default in appearance by the plaintiff was due to any sufficient cause. But if we apply rule 2 the remedy open to the plaintiff would be to apply for restoration of the suit wherein he shall have an opportunity to produce evidence and convince the trial Court that his absence was due to a sufficient cause. In case of dismissal of the suit on the ground of default in the payment of 1/5th of the purchase money in time, the position would be the same whether rule 2 or rule 3 is applied. If rule 2 is applied the plaintiff shall have an opportunity to go up in appeal in case his application for restoration of the suit is dismissed and if rule 3 is applied he shall have a remedy by way of appeal but then there would be difficulty for the appellate Court to Judge the case on merits in the absence of the evidence on record to show that the default in appearance was due to sufficient cause. In the present case, there is another reason also why the dismissal of the suit by the trial Court should be treated as one under rule 2, Order XVII and it is that in‑ fact 1/5th of the purchase money was deposited by the plaintiff in time as we would presently show when we discuss that point. We, there fore, for the reasons stated above hold that the dismissal of the suit in the present case by the trial Court was one under Order XVII, rule 2 and therefore, it was open to the plaintiff to apply to the trial Court for the restoration of the suit and since his application for restoration was dismissed he could appeal against the Order under Order XLIII, rule 1, clause (c), and this appeal having been dismissed he could come to this Court in revision. We, therefore, treat the second appeal in this case as revision. Since the contention of the petitioner was shat he had deposited 1/5th of the purchase money in time we had per mitted the parties to adduce evidence on this point after partly hearing the arguments in this case. Feroz Din, at present Registration Clerk of the Registrar, Mirpur who was Ahlmad Diwani at Bhimber in the year 1961 was examined as a witness and he deposed that he had received Rs. 800 as `zar‑e‑khumas' in this suit on 19‑12‑1960 and had executed a receipt to this effect. This receipt in original was shown to the witness and he admitted the same to be correct. This witness further stated that as the Sub‑Judge was on leave on 19‑12‑1960 he kept the amount with himself till he handed over the same to the Nazir of the Sub‑Judge's Court in January 1961. Faizullah Khan Nazir of the Court of Sub‑Judge, Bhimber was also examined. He stated that the practice of the Court was that if he was on leave or sometimes absent from duty, the Ahlmad could also receive deposits such as 1/5th of the probable value of the pre‑emption money on his behalf. He admitted that Rs. 800, the pre‑emption money was deposited with him in this case on 2‑4‑1961 and that he issued the receipt No. 865 on 24‑4‑1961 in favour of the plaintiff through Feroz Din. Abdul Aziz Butt, appeared as witness and stated that the application marked Exh. PE dated 19‑12‑1960 was‑written by him at the request of the plaintiff. He even produced his petition‑writers' register to show that this appli cation was entered at serial No. 1085 of his register on 19‑12‑1960. We have seen the application Exh. PE. It was addressed to the Sub‑Judge, Bhimber and it was prayed in this application that the amount of Rs. 800 zar‑e‑khumas be allowed to be deposited. This application, as admitted by Feroz Din, Ahlmad was handed over to him along with zar‑e‑khumas. We have no reason to doubt the statement of Feroz Din. We, therefore, hold that 1/5th of the purchase money was deposited by the plain tiff with the Ahlmad of the Sub‑Judge's Court quite in time and if it was not entered in the cash book on that very date it was no fault of the plaintiff. The finding of the Courts below that 1/5th of the purchase money was not deposited in time is wrong and therefore the order dismissing the suit on that account is hereby set aside. As for the default in appearance of the plaintiff, no opportunity was granted by the trial Court to the plaintiff to adduce evidence that his default in appearance was due to a sufficient cause. We, therefore, remand the case back to the trial Court on this point and set aside the dismissal of the suit on this account. The trial Court will afford an opportunity to the parties and then pass suitable orders on the application of the plaintiff for restoration of the suit. Costs to follow the event. Parties have been directed to appear in the Court of Sub‑Judge, Bhimber on 15th of July 1964. S.Q. Case remanded.