Deosaran Prajapat vs Banwari Lal and Others

S.B. Sinha, J.—This Civil Revision application is directed against the order dt. 16-8-1985 passed by Sri S. Prasad, Execution Munsif Gaya in Misc. Cases No. 13 of 1978 whereby and where under he rejected the application filed on behalf of the Petitioner with regard to maintainability of the case as a Preliminary sue.

The facts of this case lie in a very narrow compass. The Plaintiff-opposite party filed title, Suit No. 19/18 of 1966/70 and in the said suit Defendant Petitioner had appeared.

From the order sheet dated 15-12-1978 as contained in Annexure of this application it appears that the Plaintiff did not take any step on that date whereas the Defendants filed their attendance. It appears that the case was called but repeatedly but nobody appeared, on behalf of the Plaintiff nor any step was taken and the suit was dismissed for default.

It is stated that before that date, the Defendants have already filed their written statement. In this view of the matter, there cannot be doubt that the application under Order IX Rule 4 of the CPC is not maintainable.

The Plaintiff, however, filed an application registered as Miscellaneous case No. 13 of 1978 purported to Order IX Rule 4 of the Code of Civil Procedure.

In the said Miscellaneous case no notice was served on the Defendants-Petitioner, The Defendant-Petitioner, however, having come to know about the institution of the aforementioned Miscellaneous case approved before the learned court below and raised the question of maintainability of the said application filed by the Plaintiff.

By reason of the impugned order, the learned court below has rejected the said application. There cannot be doubt that the petition filed by the Plaintiff Under Order IX Rule 4 of the CPC was not maintainable. In an application for restoration of the said suit Under Order IX, Rule 4 of the CPC it is not necessary for the court below to hear the Defendant. However, when a suit is dismissed for default. Under Order IX Rule 8 of the Code of Civil Procedure, an application for restoration there of can be filed only under Order IX Rule 9 thereof. In such a case, when the Defendants are a necessary parties and they are required to be heard before the original suit is restored to its original file. In this case, on 15.12.1978 when the original suit was dismissed for default, no body was present on behalf of the Plaintiffs nor did they take any step nor appealed before the court below, despite calling out of the case repeatedly.

In this view of the matter, the learned court below ought to have treated the application filed by the Plaintiff to be one under Order IX Rule 9 of the CPC and not under Order IX Rule 4 thereof. In that view of the matter, the learned court below is hereby directed to give an opportunity to the Defendant Petitioner to lead evidence in the aforementioned Miscellaneous case.

In the result, this civil revision application is allowed and the impugned order is set aside. The learned court below is hereby directed to give an opportunity of hearing to the Petitioner after treating the application filed by the Plaintiff to be one under Order IX Rule, 9 of the Code of Civil Procedure. However, in the facts and circumstances of the case, there will be no order as to costs.