Bhagwat Deen, Kalka Prasad vs Bhandari Harchhati and another

Jagat Narayan, J.C.

This is a plaintiff''s application in revision against an order of Shri K. P. Chaturvedi, Additional Munsiff, Burhar, refusing to restore an application for restoration of a suit dismissed for default. I have heard the Learned Counsel for the parties.

The suit was dismissed for default of the plaintiff on 8-4-55. He applied for restoration on 19-4-55 and 8-8-55 was fixed for hearing. On that date he was absent and his application for restoration was dismissed for default. He filed a fresh application for restoration on 31-8-55 praying that his original application for restoration be restored. The learned Munsif rejected it on three grounds.

Firstly it was rejected on merits. The date of hearing had been fixed in consultation with the applicant and his lawyer but neither he nor his lawyer appeared on that date. Nor was any application moved for adjournment. The learned Additional Munsiff was satisfied that the applicant was negligent in prosecuting his application. He also did not find sufficient reason to restore the suit. Secondly he held that treated as a fresh application the second application for restoration of the suit was barred by limitation under Art. 163. Lastly he held that application for restoration of an application did not lie.

So far as the merits of the case are concerned there can be no interference in revision with the finding of fact arrived at by the learned Additional Munsiff. On this ground alone the present application is liable to be rejected.

There is a conflict of opinion as to whether an application under O. 9 lies to restore an application under O. 9 which has been dismissed for default. The High Courts of Lahore and Madras have held that such an application can be filed, the reason being that the proceedings contemplated under O. 9 are in the nature of original matters and that by virtue of S. 141, O. 9 applies to them. On the other hand the High Courts of Bombay and Calcutta have held that a second application to restore a prior application for default does not lie. In - ''Sarat Krishna Bose V. Bisweswar Mitra'', 1927 Cal 534 (AIR V 14) (A), it was observed:

Now amidst the hopelessly conflicting mass of judicial decisions which have clustered round S. 141 and S. 647 which stood in its place before the solid bed-rock on which it is safe to take one''s stand is the decision of the Judicial Committee in the case of - ''Thakur Prasad v. Fakirullah'', 17 All 106 (PC) (B). Their Lordships'' decision makes it perfectly plain that the section does not apply to applications for execution, but only to "original matters in the nature of suits, such as proceedings in probates, guardianships and so forth." The expression "so forth" must, in my opinion, be read as meaning proceedings ejusdem generics with the instances that precede it. and include such proceedings as in divorce, in insolvency, for succession certificate and the like, and the expression "original matters" in my opinion confirm that view as meaning matters which originate in themselves and not those which spring up from a suit or from some other proceeding or arise in connexion therewith.

It was however held that the Code having made no express provision like this the provision of S. 151, C. P. C. can be resorted to. The same ''view was taken in - ''Ganesh Prasad v. Bhagelu Ram'', 1925 All 773 (AIR V 12) (C). I accordingly hold that an application under O. 9 cannot be restored under O. 9 but it can be restored under S. 151, C. P. C. As has been already mentioned above the learned Additional Munsiff found that the applicant was negligent. He was not entitled to get the advantage of S. 151, C. P. C.

I accordingly dismiss the application with costs.