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Madhusudan Singh and Another vs Krishna Prasad Singh and Another

Patna High Court · Decided on 25 April 1917 · Citation: AIR 1917 Patna 688(1) : 39 Ind. Cas. 946

HON’BLE JUDGES
Edward Chamier, C.J · Jwala Prasad, J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Order 9 Rule 8, Order 9 Rule 9
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Judgment

3 paragraphs · 395 words
1.

This is an application for revision of an order of the District Judge of Purulia dismissing an appeal against an order of the Munsif of Purulia whereby an application by the respondents here for review of an order passed by the Munsif dismissing the suit was allowed. It appears that the suit was dismissed on March 10th, 1915. The plaintiffs appealed but the District Judge dismissed the appeal as he was of opinion that the order of the Munsif was an order dismissing the suit for default under Order IX, Rule 8. The plaintiffs, after the order of the District Judge, applied to the Munsif for review of his order dismissing the suit. That application was allowed and, as already stated, an appeal against this order has been dismissed by the District Judge.

2.

It is contended here, on the authority of a decision of Sharfuddin and Roe, JJ., in the case of Deodip Singh v. Gopal Singh 88 Ind. Cas. 58 ; 1 P.L.J. 547 that the plaintiffs were not entitled to apply for review but that they should have applied under Order IX, Rule 9 to have the order dismissing the suit set aside. In my opinion the first order of the Munsif dismissing the suit was not an order under Order IX, Rule 8. The suit was dismissed because the plaintiffs were not in a position to produce evidence in support of their case. Sitting here in revision I do not think that we are bound to give any further effect to the first order of the District Judge than it now has. In my opinion inasmuch as the order dismissing the suit was not an order under Order IX, Rule 8, it was open to the plaintiffs either to appeal against that order or to apply for a review of it. Their attempt to appeal against it has failed; but there appears to be no reason why they should not apply for review of the order. They did apply for a review of the order and that application has been allowed and the suit is now to be heard on its merits Under these circumstances I do not feel called upon to interfere with the order of the District Judge affirming the order granting the review.

3.

I would dismiss this application but would make no order as to costs.