1. This appeal is directed against the order dated 9.12.1993 passed by learned Additional District Judge, Phalodi, whereby the trial court dismissed the application filed by the appellant under Order 9 Rule 4 read with section 151 Civil Procedure Code.

2. I have heard the learned counsel for the parties, perused the record.

3. A suit for permanent injunction was filed by the appellant against the respondents before the learned District Judge, Jodhpur which was transferred for trial to learned Additional District Judge No. 3, Jodhpur. On creation of the court of Additional District Judge at Phalodi, learned Additional District Judge, Phalodi had jurisdiction of the matter.

4. The respondents filed the written statements on 8.5.1986 and the case was posted for settlement of issues on 12.8.1986. At the request of respondents, case was adjourned to 13.8.1986 for settlement of issues. On 13.8.1986, the counsel representing the appellant pleaded no instructions without any prior intimation to the appellant. Appellant was not present before the court. Instead of framing issues, the trial Court dismissed the suit for want of prosecution on 13.8.1986.

5. Learned counsel for the appellant submits that having engaged Shri Dharmichand Panwar as counsel, the appellant was complacent that his interest would be looked after by his counsel. Counsel fee agreed was also paid by the appellant to his Counsel. It is further contended that the counsel engaged by the appellant before the trial Court neither intimated him his intention to-plead no instructions nor after having pleaded no instructions, informed the appellant and, therefore, there was hardly any occasion for the appellant to remain present before the trial court on the date fixed by the trial court for settlement of issues. He further contended that on 13.8.1986, suit was fixed for settlement of issues. Issues are required to be framed by the court and, therefore, presence of parties cannot be said to be necessary as nothing was to be done by the appellant for the settlement of issues. It was further contended that under Order 9 Rule 8 Civil Procedure Code, the trial court could dismiss the suit, if the appellant does not appear when the suit is called for hearing. Date fixed for framing of the issues by the trial court cannot be said to be a date fixed for hearing of the suit. The expression 'hearing' appearing in Order 17 Rule 2 Civil Procedure Code means the date when the Judge is taking evidence or hearing arguments or otherwise coming to the final adjudication of the suit. Thus, according to the learned counsel for the appellant the date fixed for settlement of issues cannot be said to be the date fixed for hearing of the suit and, therefore, he contended that trial court was in error in dismissing the suit filed by the appellant. It was further contended that the dismissal of the suit in these circumstances was not in accordance with the provisions of Order 9 Rule 8 Civil Procedure Code and, therefore, the learned trial court ought to have restored the suit on the application filed by the appellant by exercising its inherent powers under Section 151 Civil Procedure Code He further contended that application filed by the appellant should have been construed to be an application under section 151 Civil Procedure Code and for which period of limitation is governed by Article 137 of the Limitation Act. Article 137 of the Limitation Act provides three years' period of limitation. He has relied on judgment of this Court in Girish Chandra v. Radhey Shyam and Others, ILR (1970) 20 Raj. 493 in which, this Court had held as under :

"An application under Section 151 invoking the inherent powers of the court has generally been held to be governed by Article 181 which provides for a period of limitation of three years. In some cases it was held that such an application is not made under any provision of the Civil Procedure Code and hence it is not governed by Article 181." (Correspond