BABU Vs. DEWAN SINGH

JUDGEMENT

(1.) This is an application by a defendant in revision against an order of the courts below dismissing his application for the setting aside of an 'ex parte' decree.

(2.) The opposite party filed a suit against the applicant. On 15-4-1950, which was the date for the filing of the written statement by the applicant, the applicant was absent and the court ordered that the suit would proceed 'ex parte' against him' and fixed 3-5-1950 for 'ex parte' evidence. When the suit was called out for hearing on 3-5-1950, neither the opposite party nor the applicant was present and the court dismissed the suit in the absence of the parties. Later, at the request of the opposite party, the suit was restored but without any notice having been given to the applicant. After restoring the suit, the court again proceeded 'ex parte' against the applicant, gave him no notice of the next date fixed for recording 'ex parte' evidence and on 12-7-1950 passed an 'ex parte' decree against him. The applicant then applied for the setting aside of that decree and that application has been dismissed by the courts below.

(3.) The first contention of the applicant is that the suit should not have been restored without a notice being given to him. There is no law under which a notice was necessary to be given to him. The suit was dismissed under Order 9, Rule 3, and was restored under Rule 4. That Rule does not lay down that before a suit is restored a notice should be given to the defendant. A defendant is entitled to a notice only when a suit is dismissed in default under Rule 8, in his presence. See 'BRIJ LAL v. BUA RAM', 10 All LJ 399 and 'RAMJI LAL v. KESHEO RAM', AIR 1923 Oudh 55(1) in support of this view. The provision in Rule 14 is of no application at all because that deals with a notice to the plaintiff of an application for the setting aside of an 'ex parte' decree. The trial court committed no illegality or irregularity in restoring the suit without notice to the applicant.