SURENDRA KUMAR SARKAR Vs. SMT. CHAPALA SUNDARI BHOWMIK AND ORS.

JUDGEMENT

(1.) (A) Whether a suit can be dismissed under Order 9, Rule 8 of

(2.) THE petitioner instituted a title suit against the opposite parties for dissolution of the partnership business, rendition of accounts and claimed other reliefs in the Court of the Additional Subordinate Judge, Tripura at Agartala. The defendants appeared, filed their written statements and issues were framed. A commissioner was appointed and he was directed to take over possession and custody of the books of accounts, documents and papers relating to the partnership business for audit. In the meantime on creation of a new district, the Court of the subordinate Judge was established and the suit was transferred to the subordinate Judge at Udaipur. The transferee Court issued notice to the parties to appear before it on the 25th January, 1977. The plaintiff appeared but the defendants did not turn up and the transeferee Court isued for return of service fixing 10 -2 -1977 for necessary orders. On 10 -2 -1977 defendants 1 (a) to 1 (k), upon whom the notice had been served appeared but the notice issued upon the defendant No. 2 was returned unserved. Overlooking the fact that the defendant No. 2 did not receive any notice of transfer of the case the transferee Court fixed 8 -3 -1977 for final hearing, notwithstanding non -appearance of defendant No. 2. The learned Judge also did not issue any direction to the commissioner td produce the relevant materials lying in his custody. On 8 -3 -1977 the plaintiff filed an application praying for amendment of the plaint, the learned Judge rejected the same and directed the parties to get ready at once for final hearing whereupon the plaintiff filed an application for adjournment but the same was turned down. Thereafter the suit was called on for hearing at 1 -15 P.M. and dismissed as the plaintiff did not turn up on call.

(3.) THE next contention of the petitioner that the suit was called at a time when it was not the ordinary hour of sitting for civil Courts and the plaintiff had no prior knowledge or information that the suit would be called on for hearing at that time, and the order of dismissal is without jurisdiction, has strong force behind it. Under the Civil Rules and Orders framed by Gauhati High Court, the ordinary working hours of sitting for all Civil Courts have been fixed. The recess period has been fixed in between 1 P.M. to 1 -30 P.M. vide Rule 1 of "the Rules and Orders". The Rules have been made under the Civil P. C. and are binding on all Civil Courts and Officers subordinate to Gauhati High Court. As such it is indubitable that the suit was called on for hearing at a time when it was not the ordinary hours of sitting of Civil Courts. The plaintiffs had no prior notice that the suit would be called on for hearing at 1 -15 P.M., the recess period of Civil Court. Under these circumstances I am constrained to hold that when the suit was called on for hearing at a time, when it was not the ordinary hours of sitting of the Court and when the plaintiff had no knowledge that the suit would be called during the recess period, the order of dismissal of the suit at that hour of the day was absolutely invalid and without jurisdiction and the impugned order is liable to be set aside, to uphold the cause of justice.