Jharkhand High Court
Alim Seikh & Anr vs Mobina Bibi & Ors on 12 September, 2011
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No. 28 of 2010
Alim Seikh & Another ..... Petitioners
Versus
Mobina Bibi & Others ..... Respondents
-----
CORAM: HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
-----
For the Petitioners - Mr. Ayush Aditya
For the Respondents - M/s Amit Kumar Tiwari, R.R.Tiwari
-----
8/12.9.2011This revision is against the order dated 26.4.2010 passed in Misc. Case No. 16/09 whereby learned Court below has restored the suit dismissed under Order IX Rule 3 C.P.C.
The main ground on which the said order has been challenged is that the Title (Partition) Suit No. 24/85 was dismissed, as the defendants did not appear when the suit was called out for hearing. Since there was no specific order regarding appearance of the defendants when the suit was called out for hearing, it must be inferred that the defendants were present when the suit was called out for hearing and as such in absence thereof, the Court has no jurisdiction to treat dismissal of the suit under Order IX Rule 3 C.P.C and he has no jurisdiction to restore the suit under Order IX Rule 4 C.P.C.
Learned counsel for the petitioners submitted that the defendants-petitioners were present in the Court, which is evident from the order sheet. They had filed their Hazri in the Court. Once Hazri is filed, it must be held that the defendants were present and the Court cannot dismiss the suit under Order IX Rule 3 C.P.C.
Learned counsel for the respondents, on the other hand, submitted that putting a Hazri in the Court does not fulfill the requirements of Order IX Rule 3 C.P.C. The parties must be present when the suit is called out for hearing.
In the instant case, when the suit was called out for hearing, neither party appeared and responded to call. Learned Court below, thus, dismissed the suit under Order IX Rule 3 C.P.C.
Learned counsel further submitted that the parties were not present at the time when the suit was called out for hearing. No objection was raised by the defendants before learned Court below. In this civil revision, for the first time, the petitioners have raised the plea that the Court below has invoked provision under Order IX Rule 3 C.P.C and dismissed the suit in spite of the presence of the defendants at the time of hearing of the suit.
I have heard learned counsel for the parties and perused the impugned order. Learned Court below has restored the suit for hearing under Order IX Rule 4 C.P.C in the interest of justice. He has passed the said order after properly considering the facts and circumstances appearing in the case. Learned counsel for the petitioners also fairly admitted that objection was not raised before the Court below on the ground that the defendants were present at the time when the suit was called out for hearing.
In this civil revision, the petitioners cannot be allowed to take any factual ground for the first time.
Moreover, from the record, it does not manifest that the defendants-petitioners had appeared before the Court below when the suit was called out for hearing. Order IX Rule 3 C.P.C does not speaks of putting a Hazri in the Court. It envisages appearance of the parties at the time when the suit is called out for hearing.
In the instant case, I find no material on record to hold that the dismissal of the suit attracts the provision of Order IX Rule 8 C.P.C, as suggested by learned counsel for the petitioners. No ground as such is made out for interfering with the impugned order of learned Court below in exercise of revisional jurisdiction of this Court under Section 115(1) C.P.C.
This civil revision is, accordingly, dismissed.
S.K (NARENDRA NATH TIWARI, J)