BROCHO AND CO P TLD Vs. CHAMELI GHOSH

JUDGEMENT

(1.) THIS application under Sec. 115 of the Code is directed against order No. 47 dated 31,3 1982 passed by Sri D. K. Bhattacharya, Munsif, Fourth court, Sealdah in Title Suit No. 384 of 1976 allowing an application under Sec. 151 of the Code by which the suit was restored in its original file. The Suit was fixed for peremptory hearing on 31. 3. 82. At 10. 50 a. m. the suit was taken up for hearing. At that time neither the plaintiff nor the defendant was present and the suit was dismissed for default. Soon after, on behalf of the plaintiff an application was filed under Sec. 151 of the Code for restoration of the suit stating that the plaintiff's husband was a bit late in attending Court. He reached at about 11 a. m. as there was traffic congestion but before that the suit was dismissed. In the circumstances, prayer was made for recalling the order of dismissal and for restoring the suit. That application was allowed. Being aggrieved, the defendant petitioners has come up to this Court.

(2.) IT is submitted by Mr. Kanjilai, Learned advocate appearing for the petitioner, that when the suit was dismissed according to the provisions of Order 9 rule 3, the proper procedure for the plaintiff was to file an application under Order 9 Rule 4. But instead of doing so, she has filed an application under Sec. 151 of the Code. Again if is submitted that by the order of dismissal the petitioner accrued a right and, as such, he was entitled to a notice before the application under Sec. 151 was allowed.

(3.) THE learned Advocate appearing on behalf of the opposite party submits that true there is a provision for restoration under Order 9 rule 4. But considering the facts and circumstances of the case, the iearn6d Court allowed the application under sec 151 of the Code. As such it cannot be said that there has been any illegality or irregularity. On the question of notice the learned Advocate places a decision reported in AIR 1952 All 749. It has been held that where a suit is dismissed under Order 9 rule 3 and is restored under rule 4, the latter rule does not lay down that before a suit is restored, a notice should be given to the defendant. The defendant is entitled to a notice only when a suit is dismissed in default under rule 8 in his presence. Applying this principle it can be said that in the present case also there was no necessity to serve notice on the defendant before the application under Sec. 151 was allowed. It may be mentioned that the defence against delivery of possession has been struck off as the defendant failed to pay the arrears which he was directed to do on the basis of the order passed under Sec. 17 (2a) (b ). For all the reasons stated above, I do not find anything to interfere.