GIRIJA H. Vs. ANANDALAKSHMI

JUDGEMENT

(1.) Petitioner was the plaintiff in a suit for partition. There were 9 defendants in the suit. Summons were served on all of them. Only defendants 1, 2 and 9 appeared before the trial court and contested the proceedings. Others were declared ex parte. After completion of proceedings, the case was listed for trial to 06.04.2019. On that day, the plaintiff remained absent. Hence the suit was dismissed for default. I.A. No. 174 of 2019 to restore the suit was filed under Order IX Rule 9 CPC. Court below ordered notice to be issued to all the respondents, including the respondents who had remained ex parte. Petitioner filed review petition as R.P. No. 219 of 2019 before that Court to review the order directing the petitioner/plaintiff to take out steps against the respondents who were ex parte. Court below dismissed the review petition by Ext. P2 order, which is assailed in this original petition.

(2.) Considering the limited question involved, the O.P(C) itself was heard without ordering notice to the respondents.

(3.) The contention of the learned counsel for the petitioner was that, the court below ought not have issued notice to the respondents, since in so far as it related to the defendants who remained ex parte, suit was dismissed under Order IX Rule 3 CPC and the dismissal of suit in relation to them can be set aside invoking Order IX Rule 4 CPC. It was contended that, under Order IX Rule 4 CPC, notice was not liable to be issued to the non-contesting respondents. Court below dismissed the application holding that the contention of the review petitioner that the dismissal of the suit for default was one under Order IX Rule 3 CPC and that the application must be treated as one under Order IX Rule 4 CPC as against ex parte defendants was not sustainable and infact, the application was one under Order IX Rule 8 CPC. It was hence held by the court below that the restoration application can only be considered as one filed under Order IX Rule 9 CPC and Order IX Rule 9(2) CPC mandated that notice to the opposite party was essential.