( 1. ) THE defendants are aggrieved by an order passed by the trial court whereby the suit instituted by the non-petitioner has been restored. On november 3, 1969 the suit was dismissed for non-appearance of the plaintiff. That date had been fixed for framing of issues. On November 18, 1969, the plaintiff made an application under Order 9, Rule 9, Civil Procedure Code for restoration of the suit stating that on the 3rd November 1969 he was suddenly down with fever and his counsel was busy in another Court when the case was called on for hearing. In support of his application, the plaintiff filed his affidavit. The defendants opposed the application for restoration.

( 2. ) THE trial Court did not record any evidence but on the above material ordered restoration of the suit. It has observed that there was sufficient cause for non-appearance of the plaintiff. It has made a specified mention of the fact that the date on which the suit was dismissed was for framing of issues. He did not award costs to the defendants.

( 3. ) IN this revision, Shri M. M. Jain, learned counsel for the defendants contends that the order of the trial Court is invalid, and not in accordance with law. No reasons are given in the impugned order. The date for framing of issues was a "date of hearing" and it was obligatory for the plaintiff to appear on that date. There was no legal evidence to support the plaintiffs case for non-appearance. The affidavit filed by the plaintiff was no legal evidence. It was merely for the prima facie satisfaction of the trial Court. The learned counsel has relied on several decisions of this Court. Suffice to mention three of them: -Mithailal Gupta v. Inland Auto Finance (1967 MPLJ 776=air 1968 MP 33), Anand Swaroop v. Kishanchand (1961 MPLJ Note240=1961 JLJ 1239) and E. S. I. Corporation v. Harcharansingh (1969 MPLJ 550=1969 JLJ 725 )

( 4. ) AS legal propositions all the three contentions are right. It is true that a date which is fixed for framing of issues is a date of hearing within the meaning of Order 9, Rule 8 or Order 17, Rule 2 of the Code of Civil Procedure. Therefore, when the plaintiff does not appear, the suit can be dismissed for default, and if the defendant does not appear, the Court can proceed ex-parte. The remedy open to the plaintiff or the defendant, as the case may be, is provided in Older 9, Civil Procedure Code. It is. however, worthy of note that if a date so fixed is a date to which the hearing of the suit was adjourned within the meaning of Order 17, Rule 2, Civil Procedure Code, the Court has also discretion to make such other order as it thinks fit. The Court is not bound to dismiss the suit. For instance, the Court can frame issues and inspite of nonappearance of a patty or both the parties, fix another date for evidence, or other steps which may be necessary. The Court may even adjourn the hearing simpliciter, fixing another date for framing of issues. In such a case, it will be the duty of the parties to find out what order was passed by the Court and whether issues were framed by it and what steps they have to take in compliance with the directions of the Court. A party who does not appear on the date of hearing is not entitled to any fresh notice or intimation from the Court and if on the next date so fixed any party does not appear, it has to suffer adverse consequences.

( 5. ) WHEN the Court has before it two alternative courses open, on the one hand, to dismiss the suit or to proceed ex-parte because of non-appearance of the plaintiff or defendant, as the case may be, or, on the other hand, to frame issues and fix another date for evidence or to adjourn the hearing for framing of issues, the Court has certainly to exercise its discretion judicially having regard to the existence of the facts and circumstances of the case.

( 6. ) THE duty of framing issues is primarily of the Court. It is an important responsibility because the trial rests on the issues. When a date is fixed for frami