RADHA BALLABH Vs. JAWAHAR LAL

JUDGEMENT

(1.) THIS is a defendant's second appeal prising out of a suit 'for profits under Section 230, U. P. Tenancy Act, No. 17 of 1939. The suit had been instituted by Jawahar Lal, the plaintiff-respondent. During the pendency of the suit he became insane and his son was appointed his next friend. On. 27-7-1948, the suit was dismissed in default. An application for restoration of the suit was made on 25-8-1948, which was described as "an application by Prem Chand, the pairokar of the plaintiff, through his Vakil Sri Jamuna Prasad". In that application it was contended that the plaintiff had been ill on 27-7-1948, when the case was fixed for hearing. The application in restoration was allowed and the suit was restored to file on its original number of re-hearing by an order dated 4-11-1948. The defendant had made an application for the review of the order of restoration but that application was rejected. Ultimately the suit was decreed by the learned Assistant Collector, first class, on 30-3-1950, in the sum of Rs. 80/12/9 with proportionate costs and interest. Prom that decision an appeal was taken before the Civil Judge of Mathura, being Revenue Appeal No. 33 of 1950, and the appeal was dismissed on 29-7-1953. The defendant has, therefore, come up in second appeal.

(2.) THE point which has been urged by learned counsel for the appellant is that the application in restoration was not made by or on behalf of the plaintiff and consequently the Court wrongly assumed jurisdiction in entertaining it and in restoring the suit to file on its original number. Ordinarily an order passed by a Court restoring a suit to file on. its original number under the provisions of Order 9, Rule 9 Civil, P. C. , would be a revisable order under the provisions of section 115 of the Code. 'habib Shah v. Debi Bax Singh', 14 Ind Cas 221 (Oudh) (A), 'manickam Filial v. Mahudam Bathummal', AIR 1925 Mad 209 (B) and 'raghunath Das v. Sri kishan', AIR 1950 All 248 (C) may be cited as cases in support of this pro position. A Full Bench of this Court in -- 'ram Sarup v. Gaya Prasad', AIR 1925 All 610 (D) held that the high Court can interfere in revision with an appellate order directing the setting aside of a decree 'ex parte'.

(3.) THE matter, in the present case, will however, be governed by the provisions of the U. P. Tenancy Act of 1939. Under that Act the Second Schedule lays down that Section 115, Civil P. C. will not apply to suits or proceedings under the Act. It has, therefore, to be seen whether the order of restoration passed under Order 9, Rule 9, Civil p. C. , which was not revisable under Section 115 of the Code, can be brought into question in this appeal. Learned counsel for the appellant relies upon Section 105, Civil P. C. , in support of his submission that it can be so brought into question. That section provides: