JUDGMENT
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.
3. 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.
4. 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.
5. As noticed above although there was a specific order passed on 5-11-1992 for posting the case on 24-11-1992 but the case was not put up on 27-11-1992 rather it was put up on 28-3-1993. That was the reason on 28-3-1993 and on the subsequent dated i.e. 8-4-1993, 19-4-1993 neither the plaintiff nor the defendant appeared in the suit and took any steps. Besides the above the evidence adduced by the petitioner regarding the illness of the Counsel and his subsequent death has not been controverted by the defendant. On that ground also the Court below ought not to have rejected the restoration application filed by the petitioner. Besides the above it is also well settled that if substantial amount of public money is involved in a suit then normally it could be restored.
6. For the aforesaid reason this appeal is allowed and the impugned order passed in Miscellaneous case No. 12/95 is set aside. The suit is restored to its original file. The Court below is directed to take the suit for hearing and conclude the same as expeditiously as possible and preferably within a period of six months from the date of production of a copy of this order.