Bhandari - (1.) THIS is a revision petition on behalf of Radha Kishen plaintiff who had filed a suit against Mst. Gaindi and Madanlal opposite party in the court of Munsif West, Jaipur City, on the 24th of April, 1948, for declaration that the defendant No. 2 Madanlal was not the adopted son of Shiv Shankar, husband of Mst. Gaindi defendant No. 1. Several issues were framed in the case and the plaintiff closed his evi-dcence on the 12th of September, 1950, on the issues the burden of proof of which lay on him, and 7th and 8th of December, 1950, were fixed for recording evidence on behalf of the defendants. The case was thereafter adjourned several times. One of the reasons for adjournment was that the parties wanted time for compromise. Ultimately, on the 30th of March, 1951 the advocates of both the parties stated that the parties have not come to a compromise, and prayed that the case be adjourned and the court adjourned the case for 30th of May, 1951. On the 18th of May 1951, an application was filed on behalf of Mt. Gaindi, defendant, praying for adjournment of the case from the 30th of May, 1951, to any date in the month of July, 1951. Notice of this application was issued to the plaintiff applicant fixing the 30th of May, 1951, as the date of hearing of the application. On the 30th of May, 195 (, Mr. Ram Chander Kasliwal advocate was present on behalf of the defendant. None was present on behalf of the plaintiff and the case was transferred to the Additional Munsif West, Jaipur City. The record of the case was received by the additional Munsif, West on that very day and when the case was called for hearing in that court, the advocate for the defendant was present but the plaintiff was absent and 1st of August, 1951, appears to have been fixed for further proceedings but this order was scored out later on that very day and it was ordered that as the plaintiff or his advocate was not present the suit be dismissed in default of the plaintiff. On the 16th of August, 1951, Sri Ganesh Lal Advocate on behalf of the plaintiff made an application to the Munsif West that the 30th May, 1951, was fixed in the case but the defendant had applied for adjournment on that date, and that as no notice of that application was served on the applicant he did not attend the court on that date and on inquiry from the clerk of the advocate of the defendants, he was informed that the 1st of August, 1951, had been fixed in the case, but the case was not called on the 1st of August, 1951. The plaintiff prayed that he might be informed as to what had happened in his case. On the 12th of September, 1951, Shri Ganesh Lal advocate was informed by the court of Munsif West that the plaintiffs suit had been dismissed on the 30th of May, 1951, by the Additional Munsif.
(2.) THEREUPON on the 15th of September, 1951 the plaintiff applied for the restoration of his case setting forth all the above facts, and also that on the 31st May, 1951, Shri Lalchand, clerk of the advocate of the defendants had informed him that 1st of August, 1951, had been fixed in the case. This application was rejected by the Munsif West on the 26th of November, 1951 on the ground that sec. 151 C.P.C. was not applicable to the facts of the case. The plaintiff went in appeal to the court of the District Judge, Jaipur City who held that the application by the plaintiff for the restoration of his suit was barred under Art. 173 of the Limitation Act. The plaintiff has therefore, preferred this revision petition. The learned counsel for the petitioner has urged that the order of the learned Additional Munsif West dated the 30th of May, 1951, dismissing the suit of the plaintiff in default was not a proper order. It is obvious that this order was passed under Order 17, rule 2 of the C. P. C. read with Order 9 of the C.P.C. Order 17, rule 2 runs as follows - "Where, on any day 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 such other order as it thinks fit." under this rule, the court is given the discretion either to proceed to dispose of the suit in one of the modes provided in Order IX or make such other order as it thinks fit. This discretion is to be judicially exercised. In this case, the plaintiff had at the earlier stages of the trial closed his evidence and the 30th of May, 1951, was fixed for the evidence of the defendant. It has been observed in the case of Subramani Othuvar vs. Munusamiya Pillai(l), in civil revision petition No. 68 of 1915 following the case of Bombay High Court in the case of Ningappa vs. Gowdappa(2) - "When a plaintiff has closed his case and there is evidence which if unrebutted would prove his case, it can hardly be deemed a judicial exercise of discretion to dismiss the suit for default, because the defendant and his witness could not be examined. There was no reason why the defence evidence should not have been recorded in plaintiff's absence and the case dispossessed of on its merits and this is the course that the Subordinate Judge should have followed." In the case of Prativadi Bhayankaram Pichamma vs. Kamisetti Sreeramulu (3), Krishnaswami Sastriyar J.made the following observations - "It will thus be seen that R. 2, O. 17 empowers the Court to apply to adjourned hearings the same procedure to be followed in the case of failure of parties to attend on the first hearing. It however, expressly empowers the court instead of proceeding under O.9, to pass such other order as it thinks fit. There is therefore nothing to prevent the court from adjourning the case to another date if the parties fail to appear and the court thinks that in the interests of justice it should not dismiss the suit or decree it ex-parte. This should be borne in mind as it has been strenuously argued before us on the strength of some of the observations in some of the decisions referred to in course of the arguments, that the view taken in Chandramati Ammul vs. Narain Sami Iyer (ILR 33 Mad. 241) is likely to entail great hardship on the defaulting party. Where the Judge thinks that the defaulting party has proved his case, he is not bound to apply the provisions of O. 9 but can adjourn the case to another date in case he fails to appear and I am sure no Judge with any sense of justice would dismiss a just claim which he considers proved simply because a party fails to appear on an adjourned date." This Madras case was followed in the case of Chammaklal Mandal vs.Mauji Mandal, (4). In this case the learned Additional Munsif intended to pass the order adjourning the case to the last of August, 1951, but that order was scored out and the suit was dismissed in default of the plaintiff. Presumably the learned Additional Munsif thought that he was tied down to pass the order of dismissal. He did not apply his mind that he had discretion under Order 17, rule 2 of the C. P. C. and that this was a case in which he should have used his discretion by adjourning the case. There was already in application on behalf of the defendant for the adjournment of the case. The case had been transferred in his court from another court. The defendant's counsel was not present. The plaintiff had closed his evidence. Under these circumstance it would have been proper of the learned Additional Munsif to adjourn the case or to ask the defendant to product his evidence. The observations of their Lordships of the Supreme Court in the case of Sangram Singh vs. Election Tribunal, Kotah (5) are instructive. That case deals with the defendant in an election petition case against whom ex-parte order had been passed, and it has been observed: - "If the defendant does not appear at the adjourned hearing (irrespective of whether or not he appeared at the first hearing) O.17, R. 2 applies and the court is given the widest possible discretion either to dispose of the suit in one of the modes directed in that behalf by O. 9 or make such other order as it thinks fit." The points is this. The Court has a discretion which it must exercise. Its hands are not tied by the so-called 'ex parte' order; and if it thinks they are tied by O.9 R. 7 then it is not exercising the discretion which the law says it should and, in a given case, interference may be called for." The above observations clearly show that the court is granted a discretion which it must exercise. The authorities of the various High Courts cited above, clearly show that the proper discretion that should be exercised in a case in which the plaintiff has closed his evidence on his part of the case, is either to adjourn the case or to call upon the defendant to produce the evidence. Rules of procedure are meant to advance the cause of justice. They should not be applied in a manner which may defeat it. The plaintiff who had made out a case should not he punished to the extent of dismissal of his case if he does not attend the case on an adjourned date fixed for the recording of the evidence of the defendant. It is sufficient under such circumstances that the evidence of the defend is recorded in his absence and he is not in a position to cross-examine the witnesses. In the present case there are other circumstances which make it necessary that the plaintiff's case should not have been dismissed for default. I have already made reference to them. There was thus clear violation on the part of the Add-tional Munsif West to exercise the jurisdiction vested in him, of adjourning the case or of asking the defendant to produce his evidence Instead he exercised his jurisdiction in an improper manner of dismissing the plaintiff's claim in default. Under the circumstances of the present case there was clear failure on the part of the Additional Munsif to exercise the jurisdiction vested in him of not proceeding under 0. 9 C P.C. and adjourn the case. The learned counsel for the opposite party argues that there is no revision petition against the order passed by the learned Additional Munsif on the 30th of May, 1951, and this revision petition has been filed on the 6th of May, 1952. after a considerable delay. From what has been said before, it is apparent that the plaintiff was taking all possible steps to set aside the order of the 30th May, 1951. Learned counsel for the plaintiff had been informed by the clerk of the opposite party's advocate Shri Lal Chand that the case had been adjourned to the 1st May, 1951. This fact is not challenged before me. Mr. G.C. Kasliwal for the opposite party has conceded that he did not challenge the facts stated in the restoration application of the plaintiff. It would have been advisable on the part of the counsel for the plaintiff to have gone to the court personally on the 30th May, 1951 and to have ascertained as to what had happened in the plaintiff's case. But it does some time happen that this precaution is not taken. Thereafter, the plaintiff had been taking all possible steps to get the order of the 30th May 1951, set aside. He applied for the restoration of the case as soon as he was informed that his suit had been dismissed for default. But unfortunately sec. 5 of the Limitation Act is not made applicable to applications under Order 9 and as such this restoration application was dismissed and his appeal to the learned District Judge, also failed. In my opinion under the circumstances of the case this is a fit case in which I should exercise my revisional jurisdiction and set aside the order passed by the learned Additional Munsif on the 30th of May, 1951. As observed in Ramchandra vs. Pannalal (6), there was no period of limitation prescribed for applications under sec. 115, and it is not even necessary that an application by a party should be filed. I therefore, set aside the order of the learned Additional Munsif dated the 30th of May, 1951, dismissing the plaintiff's suit in default and send back the case to the Munsif West for deciding it according to law. No order as to costs under the circumstances of the case. Learned counsel for the opposite party prayed at the end of his argument that permission may be granted to him under sec. 18 of the Rajasthan High Court Ordinance for special leave to appeal to Division Bench. Under sec. 18 of the aforesaid Ordinance, an order passed in revisional jurisdiction by a single Judge of the High Court is not appealable. Permission is, therefore refused. ;