Rajendra Nath Mittal, J. - (1.) THIS revision petition has been filed by the Plaintiff against the order of the Additional District Judge, Karnal, dated December 4, 1978.
(2.) BRIEFLY the facts are that the Plaintiff filed a suit for declaration to the effect that he was owner of one half share of the property in dispute. The suit was fixed for the evidence of the Plaintiff for 6th June, 1972. No witness on behalf of the Plaintiff was present in the Court on that date and the case was adjourned to 28th August, 1972. Some miscellaneous matter came up before the Court on July 19, 1972, on which date the Plaintiff was not present. The Court dismissed the suit in default on that date. An application for restoration of the suit was filed by the Plaintiff on October 3, 1972. The application was contested by the Respondent on the grounds that there were no sufficient reasons for non -appearance of the Plaintiff and that the application was not within the period of limitation. On the pleadings of the parties the trial Court framed the following issues: 1. Whether there was sufficient cause for the non -appearance of Plaintiff, when the suit was called for hearing and dismissed ? 2. Whether the petition has been filed within the prescribed period of limitation? Both the issues were decided by the Court against the Plaintiff. Consequently, the application was dismissed by it. The Plaintiff went up in appeal before the Additional District Judge, Kamal, who reversed the finding on issue No. 1 and held that the dismissal of the suit on July 19, 1972 by the trial Court was wholly unjustified as the suit was not fixed for hearing on that date. He further held that there was sufficient cause for the Appellant not to appear on the said date. On issue No. 2, he affirmed the finding of the trial Court and held that the application was governed by Article 122 of the Limitation Act and was not within limitation. Consequently, he dismissed the appeal. The Plaintiff has come up in revision against that order to this Court. It is vehemently contended by the learned Counsel for the Petitioner that the case was not fixed for hearing on July 19, 1972 when it was dismissed for default. He submits that, therefore, the dismissal cannot be said to be under Rule 8 Order 9, Code of Civil Procedure (hereinafter referred to as the Code) or any other rule of the said Order. According to the counsel, in such circumstances, Article 122 of the Limitation Act, 1963 will not be applicable and that Article 137 will apply. In support of his contention he places reliance on Rahimuddin Sheikh and Ors. v. Sarifan Nesa and Ors., A.I.R. 1954 Ass 92, Ram Reddy and Anr. v. Yenka Reddy, A.I.R. 1956 Hyd 139 and Vishwanath Nagnath Andage v. Mahadeo Sultanappa Waghmode and Anr. : A.I.R. 1964 Bom 40. On the other hand the learned Counsel for the Respondent has argued that the dismissal was under Order 9 Rule 8 of the Code and the application was governed by Article 122 of the Limitation Act.
(3.) I have heard the learned Counsel and given thoughtful consideration to the arguments. I, however, agree with the contention of the learned Counsel for the Petitioner. The facts of the case are not disputed. The case was fixed for evidence of the Plaintiff for June 6, 1972 and on that date it was adjourned for his evidence for August 28, 1972. Before that date, a miscellaneous application of the Plaintiff came up for hearing on July 19, 1972. On that date the Plaintiff was not present. Instead of dismissing that application the Court, through oversight, dismissed the suit. The Court could not do so under Order 9, Rule 8, as it provides that 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. The words "the suit is called on for hearing" are important. These words show that the suit must be fixed for hearing for the date on which action is taken under the aforesaid rule. In the present case, however, the suit was not fixed for hearing. On the other hand miscellaneous application was fixed on that date and in default of the presence of the Plaintiff that application could be dismissed. Article 122 of the Limitation Act provides a period of 30 days for restoration of a suit in case it has been dismissed for default of appearance of the plaintiff .;