DEVI DAYAL TEXTILE CO Vs. NAND LAL

JUDGEMENT

(1.) This revision petition has been filed by the defendants under section 115 of the Code of Civil Procedure, against" the order of the Sub-Judge, dated 27th January, 1973, setting aside the dismissal of the suit.

(2.) The material facts of the case lie in a narrow compass. On 27th January, 1973, none appeared for the plaintiff, while the counsel for the defendants was present, and the court dismissed the suit in default of appearance. On the same date the court suo moto recalled its order on the ground that the case was really fixed for 8th February, 1973 for obtaining the specimen signatures of the defendant and as such it could not be dismissed on 27th January, 1973 and so the order was recalled, and notice was issued to the defendants. The counsel for the defendants has challenged the subsequent order of the court and has contended that the court had no jurisdiction to recall the order under section 151 of the Code of Civil Procedure without an application of the-plaintiff under Order 9 Rule 9 of the Code for setting aside the dismissal.

(3.) Mr. Patney, counsel for the respondent, has contended that originally 27th January, 1973 was fixed as the date for recording the evidence of the plaintiff but the plaintiff had moved an application for obtaining specimen signatures of the defendant, which had been fixed for 8th February, 1973 and as such the date, 27th January, 1973, stood cancelled and this was the impression gained by the plaintiff respondent as well as the court.