Iqbal Ahmad, C.J:— This is an application in revision against an order dated 26-8-1944, passed by the Civil Judge of Azamgarh rejecting an application under Section 151 of the CPC, filed by Sheikh Mohammad, the applicant before us and, certain other persons. It appears that Sheikh Mohammad and certain other person filed a suit in the Court of the Civil Judge of Azamgarh on 5-5-1937 against Mt. Rukmina Kuer and others who are some of the opposite parties in the present revision. The suit was, inter alia, for specific performance of an alleged contract of sale. Prior to the institution of the suit, viz., on 28-10-1936, Rukmina Kuer had filed an application under the Encumbered Estates Act, which application has been, in due course, forwarded by the Collector to a Special Judge. On the date of the suit filed by Sheikh Mohammad and others, the E.E Act case, consequent on the application of Rukmina Kuer, was pending before the Special Judge and one of the points raised in defence in the suit by the defendants was that, in view of the provisions of Section 7 of the Encumbered Estates Act, the suit was not maintainable. This contention of the defendants found favour with the Civil Judge who dismissed the suit on 9-9-1938.
2. Being aggrieved by the dismissal of the suit, Sheikh Mohammad and other plaintiffs preferred a first appeal in this Court. The appeal was decided by this Court on 1-10-1912. This Court held that the view taken by the Court below as to the effect of Section 7 of the E.E Act was erroneous and that all that the Court below could do was to stay the hearing of the suit till the decision of the E.E Act case. In this view of the matter this Court set aside the decree of the Civil Judge dismissing the suit and remanded the suit to that Court with the direction to stay the hearing of the suit till the decision of the E.E Act case. After the remand the learned Civil Judge, in pursuance of the directions contained in the judgment of this Court, stayed the hearing of the suit. He fixed dates from time to time with a view to ascertain from the Court of the Special Judge concerned as to whether or not the E.E Act case had been decided. The order sheet discloses that eventually on 25-5-1944, it was ordered that as no intimation had till then been received from the Court of the Special Judge, the Special Judge concerned be requested to intimate the Court about the result of the E.E Act case and that “the suit be put on 3-5-1944, for the passing of proper orders.”
3. In the meantime the Special Judge decided the E.E Act case but, it is alleged, that he had committed some mistake in the framing of the decree under Section 14 of the Encumbered Estates Act, and accordingly the present applicant and his co-plaintiffs; Page: 507who were amongst the opposite parties to the E.E Act case, filed an application before the Special Judge praying that the decree passed by him with respect to the claim put forward by them be amended. By 3-5-1944, the Special Judge had communicated to the Civil Judge, who was seized of the specific performance suit, the fact that he had decided the E.E Act case. It is, however, to be noted in this connection that no intimation was sent to the Civil Judge about the application filed by the present applicant and his co-plaintiffs for the amendment of the decree passed under S. 14.
4. On 3-5-1944, the Court took up the suit and it is noted in the order sheet of that date that the parties to the suit were absent. The order sheet then goes on to state that intimation had been received from the Special Judge, second grade, that the E.E Act case had been decided, and that when the pleaders for the plaintiffs were called they stated that they had no instructions in the case. After noting these facts the learned Judge proceeded to dismiss the suit for want of prosecution. This was on 3-6-1944. The plaintiffs of the suit then on 12-7-1944, filed an application under Section 151 of the CPC requesting the Court to set aside the order dismissing the suit for want of prosecution and to restore the suit to its original number. In the application they set out the facts in detail that prevented them from being present in Court on 3-6-1944. It was also alleged in the application that they did not come to know of the dismissal of the suit till 10-7-1944. The application was not supported by any affidavit. But barring the fact stated in the application about the plaintiffs' coming to know of the dismissal of the suit on 10-7-1944, the other facts stated in the application were not open to controversy and could not be controverted.
5. The application of the plaintiffs was opposed by the defendants mainly on the ground that the proper remedy of the plaintiffs was to file an application under O. 9, R. 9 of the CPC, and that, as the plaintiffs had failed to avail themselves of that remedy, the application under Section 151 of the CPC, could not be entertained. This contention of the defendants found favour with the learned Civil Judge who held that inasmuch as there was a specific provision contained in the Code about the remedy to be pursued by an aggrieved party in the case of the dismissal of a suit for want of prosecution, the provisions of Section 151 of the CPC could not be invoked to their aid by the plaintiffs.
6. The present application in revision is directed against the order dismissing the application under Section 151 of the CPC. In our judgment the view taken by the learned Civil Judge cannot be sustained. It is manifest from the facts stated above that after the remand by this Court the Civil Judge had stayed the suit till the final decision of the E.E Act case 3-6-1944, was the date fixed not for the hearing of the suit, but only to ascertain the result of the E. E, Act case and for the purpose of passing con-sequent orders. O. 9, R. 8 has application only to those cases where on the date fixed for the hearing of a suit the plaintiff fails to prosecute the suit. In the present case, 3-6-1944, was not fixed for the hearing of the suit and, therefore, O. 9, R. 8 has no application to the case. That being so, the plaintiffs could not file an application under O. 9, R. 9 for setting aside the order dismissing the suit passed by the Civil Judge on 3-6-1944.
7. The question then arises as to whether any other remedy and, if so, what remedy was open to the plaintiffs.
8. The fact that the order dated the 3rd of June, 1944, dismissing the suit was wholly indefensible, cannot be disputed. In the first place, as that date was not the date for the hearing of the suit, the Court below had no jurisdiction to dismiss the suit on that date. In the second place, the clear intention of the order of remand passed by this Court was…. that the suit for specific performance should proceed to its trial after the final adjudication by the Special Judge. In view of the application for amendment of the decree under S. 14 filed by the plaintiffs before the Special Judge, it cannot be said that the E.E Act case had been finally decided by the Special Judge. There is therefore, no escape from the conclusion that the order passed by the Civil Judge was under misapprehension of facts and that it resulted, without any fault on the part of the plaintiffs, in grave injustice to the plaintiffs. Every litigant has a right to be heard before his cause is decided on way or the other. This fundamental right of the plaintiffs was denied to them by a wholly erroneous order passed by the Civil Judge. The plaintiffs must, therefore, have some remedy for the redress to the wrong done to them and that remedy, in our judgment, is provided for by Section 151 of the CPC. It has been repeatedly pointed out by their Page: 508Lordships of the Privy Council that it is the duty of a Court to recall and cancel its invalid order so that injustice may not be done to the litigants.
9. In view of the facts stated above, we are of the opinion that the plaintiffs were entitled to the relief sought for by Ahem in their application dated 12-7-1944. We accordingly allow this application in revision, set aside the order of the Civil Judge dated 26-8-1944, and direct that the order dated 3-6-1944, dismissing the suit for want of prosecution be recalled and the suit be restored to its original number. Costs hitherto will be costs of the cause and will abide the result.
D.S/D.H
10. Application allowed.