ACHHUTI ALIAS ACHYUTANANDA BAL Vs. PAYODHAR BAL

JUDGEMENT

(1.) This revision is directed against an order dated 21 -11 1985 passed by the learned Subordinate Judge, Bhadrak, in Misc. Case No. 93 of 1984 restoring the plaintiffs suit which was dismissed for default on 19 -6 -1984 for none appearance of either of the parties when Original Suit No. 35 of 1978 for partition was called on for hearing.

(2.) UPON dismissal of the suit, the plaintiff filed an application under Order 9, Rule 9 of the Code of Civil Procedure for restoration of the suit, Labelling of the application as one under Order 9, Rule 9 -, CPC, was misconceived since neither party appeared when the suit was celled on for hearing. The dismissal was under Order 9, Rule 3 CPC. Hence, the application for restoration should have been labelled as one under Order 9, Rule 4 of the Code of Civil Procedure, On the evidence led, the trial Court restored the suit subject to ' payment of cost by the plaintiff to the contesting defendant No. 1. It may be mentioned here that defendants 6, 27 to 31 and 45 to 47 were set ex parte by order dated 28 -3 -1979, defendants 12(Ka) to (Cha), 27 (Ka) and (Kha) and 23 were set ex parte by order dated 31 -8 -1982 and defendants 42 (Ka) to (Ga) were set ex parte by order dated 5 -1 -1983.

(3.) LEARNED counsel for the opposite parties has, however, urged that the aforesaid defendants did not enter appearance. Hence they were set ex parte. Defendant alone contested the suit by filing written statement. Therefore, failure to implead the aforesaid defendants or take notices to them in a proceeding under Order 9, Rule 4, did not introduce art infirmity in the proceeding or in the order. Noticing some conflict of views in several cases of this Court, the matter was referred to a Division Bench and that is how it has come before us.