BIBHU RANJAN DAS Vs. HAKIM ALI

JUDGEMENT

(1.) This is an application under section 115(1) of the Civil Procedure Code. It is directed against the judgment and order dated 20-03-19991, passed by the learned Assistant Judge, Muradnagar, Comilla in the Miscellaneous Case No. 17 of 1990 arising out of the Title Suit No. 49 of 1986. The present petitioner was not a party, either in the Title Suit or in the Miscellaneous Case. He was engaged in those as a lawyer, instructed by the plaintiff opposite party No. 8. The suit was dismissed for want of prosecution. Subsequently, upon an application filed by the plaintiff opposite party No. 8 under Order IX, rule 9 of the Civil Procedure Code, it was ordered to be restored to its original file and number in the Miscellaneous Case No. 17/1990. While ordering restoration of the suit the learned Assistant Judge adversely commented on the conduct and character of the petitioner, who was then appearing as Advocate for the plaintiff. This has given the petitioner his cause of grievance to move this Court with the instant Civil Revision for expunction of the adverse remarks against him as contained in the impugned judgment and order.

(2.) The opposite party No. 8, as the plaintiff, instituted the Title Suit No. 49/86 in the Court of the Assistant Judge, Muradnagar, impleading the opposite party Nos. 1-7 as the defendants. He filed the suit for a declaration of his title to and possession over the suit land. The defendant opposite party Nos. 1-7 contested the suit by filing a written stat the suit was fixed for final hearing on 1-8-90. However, on that day the learned Advocate for the plaintiff, the petitioner of the instant Civil Revision, was not ready to proceed with the hearing. It was, according to him, due to the fact that on the previous day he had conducted hearing of 2 Cases and did not return home until very late in the evening, at 8 PM. He could not then prepare the Case, as he felt unwell. The plaintiff, therefore, submitted his applications for an adjournment of the hearing on that day. In fact, he submitted 2 adjournment applications, both couched in almost identical terms. The learned Assistant Judge rejected the applications and asked the plaintiff to get ready to proceed with the hearing of the suit. However, when the suit was called on for hearing neither the plaintiff nor his learned Advocate, the petitioner, appeared to prosecute it. As a result it was dismissed for default under Order IX, rule 8 of the Civil Procedure Code, which reads as follows:

(3.) Order IX, rule 8 has imposed an obligation on the trial Court to dismiss a suit, if the plaintiff does not appear when it is taken up for hearing, unless the defendant admits the plaintiffs claim or part thereof. For such nonappearance of the plaintiff to prosecute his suit, the Rule provides, ..the Court shall make an order that the suit be dismissed. The defendants in this Case did not admit the plaintiffs claim. Instead they filed a written statement in order to contest the suit. At the time the suit was taken up for hearing neither the plaintiff nor his lawyer appeared to prosecute it. So, the trial Judge dismissed the suit under Order IX, rule 8 of the Civil Procedure Code. I, therefore find no fault with the learned Assistant Judge for dismissing the suit for want of prosecution. It is true that the plaintiff had submitted applications for an adjournment of the hearing, but no adjournment was granted.