- (1.) LIST revised Non present for the respondents. This is a part-heard writ petition. Already, parties' counsel were heard at length and the case was adjourned granting time to petitioners' counsel to file a Supplementary Affidavit alongwith the true typed copy of order-sheet dated 27th of February, 1987 and the same was filed long back, but no objection has been filed by the respondents, hence I proceed to decide the writ petition finally after hearing petitioners' counsel as well as arguments advanced by the respondents' counsel earlier.
(2.) THE plaintiffs-petitioners have approached this court under Article 227 of the Constitution of India where an application moved by the petitioners under Order 9 Rule 9 of the Code of Civil Procedure was rejected by the trial court as well as Revisional Court by the impugned order dated 22nd of April, 1987 and 27th of February, 1988 respectively. The brief matrix of the case is that petitioners have filed a Regular Suit No. 125/1976 for permanent injunction. Notices were served on the defendants of the suit and Written Statement was also filed. The case was fixed for 17th of February, 1987, for hearing. The plaintiffs-petitioners have moved an application for adjournment of the case, hence the case was adjourned for 23rd of February, 1987. On 23rd of February, 1987, petitioners could not appear before the trial court and the case was adjourned for 27th of February, 1987. On 27th of February, 1987, the petitioners again could not be present before the trial court. This fact is evident from the order sheet dated 27th of February, 1987 filed as Annexure No. S.A.-1 to the Supplementary Affidavit. The order dated 27th of February, 1987 is reproduced as under:- From the order sheet dated 27th of February, 1987, it is evident that since the petitioners were not present before the trial court hence the trial court had proceeded ex parte and adjourned the case for 10th of March, 1987. In the meantime on 5th of March, 1987, petitioners had moved an application for recall of the order dated 27th of February, 1997. An objection to petitioners' application was filed by the respondents. The trial court had rejected the application by the impugned order dated 21st of April, 1987, copy of which has been filed as Annexure No. 7 to the writ petition. Feeling aggrieved with the impugned order of the trial court, petitioners have preferred a revision which was dismissed by the Revisional Court. Copy of the impugned order dated 27-8-1988 has been annexed as Annexure No. 8 to writ petition. The short question involved in the present writ petition is that whether in the absence of plaintiffs counsel, the trial could have passed an order to proceed ex parte in the suit in question or the suit should have been dismissed in pursuance to the provisions contained in Order 9 Rule 8 of the Code of the Civil Procedure. For convenience, Order 9 Rule 8 of the Code of Civil Procedure is reproduced as under:- "8 Procedure where defendant only appears- 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 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."
(3.) THE main thrust of the argument of the respondents' counsel is that on the date of hearing of the case, in view of the provisions contained in Order 17, Rule 2 of the Code of Civil Procedure, it was incumbent on the trial court to proceed with the suit ex parte and rightly on 27th of February, 1987, the trial court had proceeded ex parte against the petitioners. On the other hand, submission of Sri R.S. Pandey, learned counsel for the petitioners is that under Order 17, Rule 2 of the Code of Civil Procedure, the trial court have been proceeded ex parte only in case substantial portion of the evidence would have been recorded during the course of proceedings. Learned Counsel for the petitioners has relied upon the judgement reported in (2003) 5 SCC 64 :(AIR 2003 SC 3527), B. Jankiramaiah Chetty Vs A.K. Parthasarthi and Others, (1986) 4 SCC 699 : (AIR 1987 SC 42) Prakash Chandra Manchanda Vs. Janki Manchanda, 1976 ALJ 379- M.S. Khalsa Vs. Chiranju Lal and 1987 LCD 44 (DB) - Kursi Lal Rungta Vs. Smt. Banarsi Devi. Learned counsel for the petitioners further proceeded to submit that previous conduct of the parties should not be taken into account while deciding the Recall Application. Learned Counsel for the petitioner has further relied upon judgements reported in 1987 LCD 44 (DB) - Kursi Lal Rungta Vs. Smt. Banarsi Devi and 1980 ACJ 570.;