LAXMINARAYAN AGARWALA Vs. LACHMAN PRASAD AGARWALA

JUDGEMENT

(1.) THE Defendant in M.S. No. 105 of 1968 filed in the Court of the Sub -Judge, Aska by the Plaintiff -opposite party for realisation of a sum of Rs. 5469 / - is the Petitioner. This revision application is directed against the order dated 16 -7 -1971 passed by the Sub -Judge restoring the suit which was dismissed for default.

(2.) THE suit was posted for hearing to 27 -4 -1971. The Petitioner by that date had appeared in that suit and filed his written statement and an application was filed on his behalf under Order 10 Rules 1 and 2, Code of Civil Procedure for examination of the Defendant. The parties had taken all steps necessary for getting ready for trial, and ultimately the case was posted to the aforesaid date i.e. 27 -4 -1971 for trial. On that date the Plaintiff and Defendant being absent on call, the suit was dismissed under Order 9 Rule 3, Code of Civil Procedure. There after on 5 -5 -1971, the Plaintiff filed a petition under Order 9 Rule 4, Code of Civil Procedure supported byan affidavit praying to set aside the dismissal order. Thereupon a Misc. Case was registered and ultimately on 16 -7 -1971 without issuing notice of the application to the Petitioner the order of dismissal was set aside.

(3.) THE question that arises, therefore, is whether service of notice on the Defendant -Petitioner in the proceeding under Order 9 Rule 4, Code of Civil Procedure is mandatory. This question has been answered by this Court in two decisions. The first in the case of Ratnakar Ray v. Kulamomi Ray : A.I.R. 1951 Ori 266. It has been there observed by Hon 'ble Ray C.J., that in a case where the Defendant has appeared and entered into contest and has filed defence and put the Plaintiff to proof of his case and thereafter the suit is dismissed for default under Order 9 Rule 3, Code of Civil Procedure and restoration is sought for under Order 9 Rule 4, Code of Civil Procedure. Notice must be issued to the Defendant before the dismissal order is set aside. It is ' said there that dismissal of the suit at that stage gives rise to a valuable right in favour of the Defendant, which is the right to prevent restoration of the suit. It will be violation of all principles of natural justice to deprive the Defendant of such right without hearing him of giving him adequate opportunity to be heard. Therefore, before the order of dismissal is set aside the Defendant is entitled to notice. This principle has received support in a later case of this Court Prahlad Prusty v. Sheikh Abdul Rahman : A.I.R. 1966 Ori 232. The case reported in Ratnakar Ray v. Kulamoni Ray is a decision of the Division Bench of this Court and is binding upon me. I am therefore satisfied that in view of the aforesaid decisions the order of restoration of the suit by setting aside the order of dismissal for default is wrong in law. The Sub -Judge has undoubtedly acted not only in excess of his jurisdiction, but also with material irregularity. In the circumstances, this order cannot be maintained.