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TMI Blog1957 (4) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of jurisdiction would not he a pure question of law but would also involve the decision on the merits of the suit itself and, therefore, he adjourned the decision of that issue and wanted to decide the, suit itself on merits and decide all the issues instead of taking them separately. A date was fixed in the case for framing of the issues and ultimately 5-3-1947 was fixed, for final disposal of the case. In the meantime the defendant came to this Court in an application in revision against the order of the Munsif refusing to decide the issue of jurisdiction in the first instance. On account of that revision no further proceedings in the suit itself took place and the proceedings remained stayed as the file of the case was summoned by this Court On 19-12-1950 this Court dismissed that application in revision and the case was sent back to the trial Court for decision on merits. The record of the case arrived in the Court of the Munsif of Faizabad on 22-4-1951. Five days later, on 27-4--1951, it was ordered that the suit should be put up for hearing on 21-5-1951 for disposal of an amendment application, which had been moved in the meantime on 22-2-1949 by the plaintiffs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fs inter alia on the grounds that it was barred by limitation under Article 164, Limitation Act, that the defendant had been duly served with the notice, that, in any event, he knew or should have known of the proceedings and if he has not known it it was wilful default on his part, that it was no duty of the Court to inform the date of hearing of the suit, on the other hand it was the duty of the defendant to find out the date on which the suit was to be heard after the return of the case from this Court, and since the defendant had been negligent he was not entitled to the benefit of Order 9, Rule 13 the ex parte decree should not be set aside. 5. Learned Munsif as well as the appellate Court have dismissed the application for restoration and aggrieved by that decision the defendant has come to this Court and he challenged the order of the Courts below on the ground that it is vitiated by illegality and material irregularity. 6. A preliminary objection has been taken as to the maintainability of this revision of the ground that the Court had jurisdiction to decide the case and whether it has decided rightly or wrongly this Court should not interfere. There can be no denyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that instance would be the first date on which the case again starts after the case is sent back from the High Court and the hearing is again resumed. In the present state of affairs both in the Court below and in the High Court, no one can be sure as to when the date will be fixed in a case and if is too much to expect from a litigant that he would every day make enquiry about the date of the hearing. There is no rule which imposes this liability on the parties to enquire the date of hearing. It would be one of the first principles of natural justice that the Court should inform the date of hearing to the parties. This was held in the case of Durga Prasad v. Het Ram AIR 1923 All 79(2XB) , by a Bench of this Court in the following words : When a Court finds it necessary to adjourn a pending suit, it is part of the duty of the Court to see that the date fixed for the adjourned hearing is communicated to the parties concerned or to their legal representatives, or at any rate to such of them as are present or represented in Court when the adjournment takes place, I respectfully agree with the observations of the Bench. That was also a case under Order 9, Rule 13 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every plaint or original petition shall be accompanied by a proceeding giving an address written in English in block letters at which service of notice, summons or other process may be made on the plaintiff or petitioner. Plaintiff or petitioners subsequently added shall, immediately on being so added, file a proceeding of this nature. 11. According to the contention of the learned counsel for the opposite parties, if once an address has been given and notice is served on that address that should be deemed to be sufficient and if the change of the address has not been communicated to the Court then in that event the defendant cannot be allowed to say that he is not aware of the proceedings because he had changed his residence. That was no fault of the Court. In the present case if the service had been effected as provided by Order 7, Rule 22 then possibly this argument would have had force. Order 7, Rule 22 provides : Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice or process can be served, is present, a copy of the notice or process shall be affixed to the outer door of the house. If on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the opposite parties has also relied on the proviso of Order 9, Rule 13 added by this Court which is Jo the following effect: ''Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. 14. There is no evidence on the record that the defendant knew of the date of hearing. There is only uncontroverted testimony of the defendant that he did not know the date fixed for the hearing. The only question is whether the defendant is guilty of wilful neglect or not. According to the admitted facts the case was received back from the High Court on 22-4-1951 and the date which was fixed for hearing ultimately was somewhere in August and finally disposed of on 5-10-1951. The application was made about three months after this. There is no reasonable time in which it could be expected that the suit would be decided. If there is no reasonable time within which the suit may be expected to come for hearing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the plaintiff had filed a suit and later on he wanted to withdraw that suit. Permission was granted to withdraw the suit and also to institute a fresh suit on condition of his paying costs of that suit to the defendant before he instituted the fresh suit. The second suit was filed without payment of those costs. The trial Court dismissed the suit on the ground that the suit was not maintainable as the costs had not been paid before the filing of the second suit. The appellate Court set aside the order of the trial Court and remanded the case to the trial Court to decide the case on merits provided the plaintiff paid the costs within a fortnight of the receipt of the record in the trial Court. That was a special indulgence shown to the plaintiff. It appears that the parties had agreed to pay costs within that period. There was no date to be fixed, notice of which was to be given to the parties. The Court in that case had to do nothing and in that event, possibly the decision given by the Oudh Chief Court was correct. That order had made it clear that it was for the plaintiff to pay the cost within a certain period from the date of the receipt of the record, and, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity in not restoring the suit. 21. This revision has been pending in this Court for about last four years and it was argued on behalf of the opposite parties that the plaintiffs had been in possession of the property for all these years, the suit is of the year 1946, roughly about 11 years, old, and, therefore, it should not be restored. While I can see that there has been a considerable delay partly it has been on account of the fact that the case has come twice to the High Court which, has taken considerable time, but, in any, event, I think that while I allow the revision, set aside the ex parte decree I would further order that the possession by the plaintiffs which has been taken by virtue of the ex parte decree shall not be disturbed till a final decree is passed by the Munsif. In case the plaintiffs' suit is again decreed there would be no question of any further possession. But in case the suit is dismissed it will be only then open to the applicant to obtain possession. The ex parte decree is set aside subject to the payment of cost of a sum of Rs. 50/- by the applicant to the opposite parties within a period of three months from today. In case the deposit is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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