An order directing ex-parte proceedings passed on a date fixed by the Reader of the court is without jurisdiction and can be set aside.

( 1 ) THE petitioners are defendants in a suit pending before Shri M. S. Rohilla, Subordinate Judge 1st Class, Delhi. The present Rivision Petition is directed against an order passed on 12th February, 1977, whereby an application under Order 9, Rule 7and S. 151, Civil Procedure Code. was dismissed on the ground that there/was no cause to set aside the ex-pane order passed in the suit.

( 2 ) THE facts of the case as revealed from the record are such that respondents have instituted a suit claiming a mandatory in junction to restore a bath and latrine which have been demolished by Delhi Municipal Corporation. The suit came before the court on 24. 8. 76, when the petitioners who are defendants Nos. 1 and 2 were present, but the Delhi Municipal Corporation which was defendant No. 3. was not present. The suit was adjourned to 20. 9. 76 for filing the written statement which was filed and defendant No. 3. was ex-parte. The case, was adjourned for filing replication and documents to 1. 11. 76. On 1. 11. 76, the Presiding Officer was on leave, so the Reader passed an order "p. O. is on leave to-day. To come up on 10. 11. 76 P. O. " On 10. 11. 76 the counsel for the plaintiff was present but no one appeared for the defendants No. 1 and 2 At that time early in the day, the replication was taken on the record and the case was adjourned for ex-parte evidence to 17-12-76. On that very date, an application was filed under Order 9, Rule 7 and Section 151 of Civil Procedure Code. stating that the counsel of the applicants was busy before the District Judge in the beginning of the day and came to the Subordinate Judge s court at 10. 10 A. M. , when he learnt that an ex-parte order had already been passed. It was also stated that 10-11-76 was not date of hearing and hence no adverse order could be passed. This application was directed to be listed on 17-12-76 which was already the date fixed for ex-parte evidence.

( 3 ) ON 17-12-76, the counsel for the defendants was again absent and hence this application under Order 9, Rule 7 of the Code was dismissed in default, No witness was present, hence the case was adjourned for ex-parte evidence on to 17-2-77.

( 4 ) AGAIN on that very date, 17-12-76 another application under Order 9, Rule 7 and Section 151 of the Code was filed in which it was stated that a request had been made for passing over the case as the counsel for the defendants was busy in another court. The case was passed over. but then at 12. 15 P. M. the application was dismissed in default. It was stated in this application that the order dismissing the first application as well as the order directing ex-parte proceedings were liable to be set a side.

( 5 ) THIS application was directed to be heard on 17-2-77 when the order sought to be revised was passed. It is atated in the order that the explanation for the absence of the party or the lawyer on other business was not a ground for an adjournment. It was also said that in case the counsel does not appear, there is no alternatibe but to proceed ex-parte. It is observed that the presence of the clerk is no presence at all as he is neither a counsel nor a proxy for a counsel. On this ground the application was dismissed.

( 6 ) THE main ground of attack in this Revision Petition is the fact that no ex-parte order could be passed on 10-11-76. The contention is based on the fact that 10-11-76, was a date fixed by the Reader and not a date fixed by the court. It can hardly be doubted that an order adjourning a case can only be passed by the court under order 17, Rule 1 of the Code. However, when the Presiding Officer is absent for some reason, then it is the practice in the Subordinate courts for the Reader or other official of the court to give a date. The question for consideration is whether on such an adjourned date the suit can be dismissed in default or an ex-parte order can be passed. Two judgments of the Lahore High Court have been brought to my notice wherein it has been