S. Beant Singh vs H. Nur Mohd. and Others

J.N. Bhat, J.—This is an application in revision against the order of the learned Second Addl. Munsiff dated 2-8-1965 whereby he has

restored the suit of the Respondents which was dismissed in default on 3-7-1966.

In a suit for adjustment brought by the Respondents against the Petitioner and another person, Gajendra Singh, the Plaintiff did not appear either

personally or through his counsel on 3-7-1966. The present Petitioner, who is Defendant No. 1 in the suit, appeared on that date the suit was

dismissed for defaults of the Plaintiff's appearance. An application for restoration was made by the Respondent on 10-7-1965 with the allegation

that he was misled about the date of hearing. According to him the date of hearing was 10-7-1965 which date he had entered in his diary. The

learned Munsiff without giving notice to the present Petitioner who was present on the date of the dismissal of the suit. i.e. 3-7-1965 and without

taking any evidence or even getting an affidavit from the Respondent, restored the suit by means of the impugned order.. The Petitioner challenges

the order in revision.

Mr. Satyapal learned Counsel for the Respondent, has taken objection that a revision does not lie According to him if the order of restoration

has been made without notice to the Defendant whose presence was recorded on the date of dismissal, it is at best an error of law and no revision

lies. Mr. Nanak Chand has challenged the order under revision on the ground that it was passed in contravention of the mandatory provisions of

Order 9, Rule 9(2) of the Code of Civil Procedure, which enjoins giving of notice to the other side before an application for restoration in such a

case was granted. He has further argued that no evidence was taken by the trial Court in support of the application. Mr. Satyapal has relied on

AIR 1949 156 (Privy Council) and Dasarathy Chakravarty Vs. Maharaja Khaunish Chandra Ray, . These authorities no doubt lay down that an

error of law is no ground for revision.

Although this authority has not been cited by Mr. Satyapal, there is a nearer authority on this point which is reported as Manik Mandal and Others

Vs. Bharosi Singh, In that case a Division Bench of that High Court consisting of Ramaswami C.J. (as he then was) and Chowdhury J., have held

that failure to comply with the provisions of Order 9, Rule 9(2) of the Code of Civil Procedure, for setting aside an order of dismissal without

giving notice to the Defendant does not in any way affect the jurisdiction of the Court, although in doing so commits an error of law. There are,

however, authorities to the contrary. It has been held that an order of restoration under Order 9, Rule 9 without issuing notice to the Defendant is

void: See Ratnakar Ray and Others Vs. Kulamoni Roy and Others, it was held that where a suit is dismissed for default and the Court refused to

restore it on the ground that it was made on merits without going in the reasons for the Plaintiff's absence, the order was held revisable.

In AIR 1918 Cal 330 it was held that an application under Order 9, Rule 9 must be disposed of on the evidence, whether viva voce or by

affidavit after it has been properly recorded, and not on a view of the judge as to whether the application is bona fide or not.

It may, however, he stated that the Privy Council and the Calcutta authorities (Supra) lay down that an error of law is no ground for revision. A

revision will lie only when a Court exercises a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested or acts in exercise of its

jurisdiction illegally or with material irregularity.

From a reading of the above provisions of Section 115 of the CPC it would appear that a revision Court can interfere when a subordinate

Court, even though having juries diction, exercises that jurisdiction illegally or with material irregularity. Personally I would think that if a Court

decides a case against the express provisions of any statute, even though it has jurisdiction to decide the case one way or the other, it exercises its

jurisdiction illegally or with material irregularity; otherwise the third Clause (c) of Section 115 would be meaningless and the subordinate Courts

would with impunity decide cases and matters against the express provisions of law without leaving any remedy to the aggrieved party. It has to be

noticed that a revision lies only when an appeal does not lie.

In such cases if this interpretation were allowed to prevail, so many irregularities and express contraventions and violations of the mandatory

provisions would be permitted to be committed by Courts and the aggrieved party left without a remedy. The interpretation sought to be put on

Section 116 of the Code of Civil Procedure, by the learned Counsel for the Respondent seems to be too narrow and not warranted by even the

terms of the section.

The Patna authority AIR 1959 Pal 226 (Supra) can be easily distinguished because even their Lordships in that case have said that ""a restoration

ordered without notice as required by Order 9, Rule 9(2) would not affect the jurisdiction of the Court. But their Lordships at the same time said

the error in making such an order is an error of law which could be corrected in an appropriate proceeding taken against that order. "" This means

that if the aggrieved party had taken recourse to a proper revision petition against the order of restoration, it must have been set right. But in that

case the order of restoration was not challenged at all, but on a decree in the main suit this ground was pressed as a ground affecting the merits of

the decision. Their Lordships rejected the contention that such an order of restoration would affect the merits of the decision in the original suit.

Therefore, that authority also does not help the Respondent's learned Counsel.

In addition to this we have a special provision u/s 115 CPC which is Clause (d) of the Code of Civil Procedure, of this State. It provides an

additional ground for interference in revision by the High Court, and the provisional powers can be exercised by the High Court when the order of

the subordinate Courts has caused failure of justice Failure of justice is a very wide term It is now well settled that failure of giving audience to a

party is failure of justice. Every matter must be decided after hearing both parties to the cause. This is what is known as the well settled principle of

natural justice or Audi altered partum In the case of restoration or dismissal under the provisions of Order 9, Rule 9(2) no order of restoration can

be made unless notice of the restoration application is given to the other party. Non observance of this rule of law is a grave irregularity and

illegality and must cause failure of justice.

In this case, as already remarked, the Court has acted on the simple application of the Plaintiff-Respondent without any affidavit, without any

statement and without any opportunity having been given to the other side to controvert the allegations made in the application for restoration For

these reasons, to say the least, the order cannot at all be maintained and must be set aside.

Mr. S. Pal for the Respondent however, made a statement that the Defendant was not at all present on 8-7-65 because ex party proceedings

had been taken against him earlier. I am not concerned with the fact whether any ex parte proceedings as alleged by the Respondent's learned

Counsel, were taken against the Defendant, but the fact remains that his presence is very clearly mentioned in the order-sheet of that date On the

mere argument of Mr. S. Pal. I cannot hold this recital in the order to be incorrect have to presume the order to be made correctly. There is

nothing on record to contradict this averment in the order. No affidavit' has been filed by the Respondent to the contrary Even if he bad done so, it

would still be a matter for consideration whether the recitals in a Court's order could be lightly brushed aside on an affidavit by an interested party.

The order under revision is therefore, set aside. The restoration application will be reheard by the trial Court after taking objections of the

Petitioner and deciding the matter in a legal and proper manner, after giving the parties full opportunity to substantiate their contentions.

The revision petition is accepted with costs. The parties shall appear before the trial Court on 27-6-1966.