Ram Kumar Agarwala and Another vs Sitaram Bhartia and Another

N.L. Untwalia, J.—In my opinion, the view taken by the learned Subordinate Judge, that an application for exercise of inherent power of the Court for the restoration of Miscellaneous Application No. 54 of 1959 is not maintainable, is not correct. The said miscellaneous application was under Order 21 Rule 66 of the Code of Civil Procedure, and any order passed under that provision is not an appealable order. Even though the applicant had a right to file another application, as has been observed by the learned Subordinate Judge, that merely is no ground for saying that an application for restoration of the original application u/s 151 of the CPC was not maintainable.

On the facts, however, it was happen to the learned Subordinate Judge to take his own view as to whether the petitioners had succeeded in establishing, sufficient case or such cause which would have entitled the Court below to restore the application. That is a question of fact and I sitting in revision cannot interfere in that regard. Mr. P.B. Ganguli placed reliance on the case of Sohanlal and Another Vs. Devachand, . But even applying the principles of that case to the present case, it is to be noticed that the petitioners did not explain at all as to why their lawyer Mr. Tandey could not be present when the said miscellaneous application was called out.

In the result, the application fails and is dismissed but I would make no ordeu as to costs.