M.Y.EQBAL, J. - (1.) THE appeal is directed against the order dated 28 -9 -1999 passed by Subordinate Judge VIM Ranchi in Miscellaneous Case No. 12/95 whereby he has dismissed Miscellaneous Case No. 12/95 which was filed by the petitioner Bank for restoration of Title Suit No. 124 -A of 1979.
(2.) THE petitioner Bank filed the aforementioned suit against the opposite parties for realization for a sum of Rs. 4,72,472.79/ - and also for mortgage decree in respect of the mortgaged property. It appears that after service of summons the defendants opposite party appeared and filed their written statement. On 27 -4 -1993 this suit was dismissed for default for non -appearance on behalf of the petitioner bank. The petitioner then filed application under Order IX, Rule 9, CPC for restoration of the said suit on the ground inter alia, that because of the illness of the Counsel for the Bank and also because of the fact that Counsel who was in charge of the brief was under gone major operation and ultimately he died. The petitioner Bank laid evidence to show that the petitioner was prevented by sufficient cause from appearing in the suit. The learned Court below after holding that sufficient cause has not been shown by the petitioner, refuse to restore the suit. The petitioner has annexed typed copy of order -sheet dated 5 -11 -1992 to 27 -4 -1993. In the order dated 5 -11 -1992 it appears that plaintiff appeared in the suit but the defendant did not any step. The suit was adjourned to 24 -11 -1992. The record of the case was not put up before the Court on 24 -11 -1992 rather it was put up before the Court on 28 -3 -1993. In the order -sheet of 28 -3 -1993 it was recorded that the next date was not posted in the Court diary and the suit was adjourned to 8 -4 -1994 for filing proposed issues. On 8 -4 -1993 and 19 -4 -1993 neither the plaintiff nor the defendant appeared in the suit and it was again adjourned on 27 -4 -1993 for filing proposed issue. On 27 -4 -1993 since the plaintiff did not appear the suit was dismissed for non -prosecution.
(3.) AT the very outset I am of the view that the Court below has committed serious and grave error of law in dismissing the suit for non -prosecution on 27 -4 -1993. Order IX, Rule 8, CPC very dearly provides that if the plaintiff does not appear and the defendant appears when the suit is fixed for hearing then the Court shall dismiss the suit. Admittedly on 27 -4 -1993 suit was not fixed for hearing rather it was fixed for filing proposed issue. The Code of Civil Procedure very categorically provides that it is the duty of the Court to settle the issues irrespective of the fact whether proposed issue are filed by the parties. The correct procedure that would have been adopted by the Court below on 27 -4 -1993 was to finalise the issue of its own and then posted the case for hearing. If on the next date of hearing the plaintiff would not have appeared the Court below could have dismissed the suit for non -prosecution. The impugned order there cannot be sustained in law on this ground alone.;