PARITOSH CHANDRA Vs. DEVKI NAND AND OTHERS

JUDGEMENT

(1.) I have heard learned counsel for the parties. The only point involved in this revision is whether after the suit having been dismissed under Order 9, Rule 5 had the Court any inherent jurisdiction to restore the case under Sec. 151, C.P.C. The learned counsel for the parties have not been able to show me any authority either way, but a plain reading of Order 9 goes to show that for dismissal under R. 3 a provision for restoration has been made under R. 4 and at the same time the plaintiff has been given, subject to law of limitation, a right to bring a fresh suit. For the dismissal of a suit under R. 5 only one remedy has been given in Sub-R. (2) and that is of bringing a fresh suit subject to the law of limitation. There is no provision in that rule for the restoration of the case. In cases of dismissal under R. 8 only one remedy of restoration has been provided under Rule 9 while it has been specifically laid down that the plaintiff shall not be entitled to bring a fresh suit. According to this scheme when there is no remedy of restoration provided for dismissal of suits under R. 5 the court would not be justified to restore the suit in its inherent jurisdiction. In restoring the suit the court will be exercising jurisdiction not vested in it and the restoration cannot be justified. If the plaintiff has any remedy it is by way of a fresh suit but of course subject to the law of limitation. The order passed by the court below being without jurisdiction must be set aside. The revision is allowed with costs. The order passed by the court below is set aside. The plaintiff's suit stands dismissed. Record of the case shall be sent back to the court below as early as possible. Revision allowed.