DHULICHAND BHURAJI Vs. CHAINSINGH BACHUSINGH

JUDGEMENT

(1.) THIS petition is for setting aside the ex parte order, dated 26-3-1963 passed in Chainsingh and another v. Dulichind Civil Revision No. 550 of 1962, D /- 26-3-63. and for a rehearing of the revision. The ground alleged is that although the petitioner had engaged a counsel, namely Shri R. K. Vijayvargiya Advocate, who had filed his power before the due date, namely, on 15-3-1963, the case was not heard on that date stated in the notice. It was actually heard on 26-3-1963, when it was decided ex parte. The counsel did not appear as his name was not mentioned in the cause list. Therefore, he failed to note the case in the cause list.

(2.) THE learned counsel for the respondents urged that Order 41, rule 21, Civil Procedure Code would not be applicable to a revision under section 115, Civil Procedure Code and, therefore, the present revision for setting aside an ex parte order is not tenable. In this connection, attention is invited to the observations of Byers J. in A. Rarnamurthi Iyer and others v. T. A. Meenakshi- sundarmmal and another AIR 1945 Mad 103. wherein the learned Judge held that a revision under section 115 of the Civil Procedure Code could be dismissed in default but the High Court has no jurisdiction to restore the petition to file, as Order 9, rule 9 read with section 107 of the Civil Procedure Code or Order 41, rule 19, Civil Procedure Code would not be applicable to civil revisions. I may only observe that it would lead to an anomalous results, if the High Court were assumed to have power of dismissal in default, and not have the power to restore the revision to file. It is to be noted that the dismissal can take place only by invoking Order 9, rule 3, Civil Procedure Code, or Order 9, rule 8, or Order 41, rule 15-A. of the Civil Procedure Code as amended by the Nagpur High Court, and Order 41, rule 17, Civil Procedure Code. In the alternative, the High Court could exercise inherent powers of dismissal. This dismissal in default of a revision cannot be justified under any specific provision of the Civil Procedure Code. THErefore, if the High Court resorts to any one of the said provisions, the same, in my opinion, could be invoked for restoration of a revision petition dismissed in default.

(3.) IN Kanai Lall Shaw v. Bhaltu Shaw. AIR 1961 Cal 474. a Division Bench had to consider the question of sufficient cause under Order 9, rule 9, Civil Procedure Code. IN that case, the attorney's name was wrongly printed in the Court's peremptory cause list and due to that the suit came to be dismissed in default. The learned Judges constituting the Division Bench held that that would constitute sufficient cause for the party's failure to appear at the hearing. This case, in my opinion, will strictly govern the situation in the present case.