RATNAKAR RAY Vs. KULAMONI ROY

JUDGEMENT

(1.) This is a petn. by defts. 4 to 11 for revising an order passed by Munaif of Cuttack restoring a suit which had been dismissed under Order 9, Rule 8, C. P. C. The suit was one for specific performance of contract of lease of some waste lands as well as Nijchas lands. The contract had been entered into by defts. 1 to 2, who admittedly are the proprietors. The contract is said to have been entered into on different dates (29-9-44 & 6-2-45) in respect of wastelands & Nijchas lands respectively. The defts. l & 2, however, executed a registered permanent lease in respect of the very same lands in favour of deft. 8 on 4-845 The latter about two years after his lease sold his lease-hold interest to defts. 4 to 12 of whom defts 4 to 11 are the petnrs. before us. Admittedly, defts, 4 to 12 were actively contesting the suit. The position in relation to the other defts. is that defts. l to 2 filed & written statement alleging that as the pltf. had failed to pay the promised consideration, they were at liberty to grant the subsequent lease in favour of deft. 3. The deft. 3 filed a written statement opposing the pltfs." case & asserting the validity of his lease free from equity in favour of any contract alleged by the pltfs. & his right to transfer to the defts. 4 to 12. The clefts. 1 to 3 did not consider it necessary to take any further steps in support of their defence & what course they were likely to take at the hearing of the suit is difficult to speculate. One thing, however, is certain that the Ct. never considered that these defts. had withdrawn from the contest. It appears to be so from the fact, as it is conceded at the Bar, that the Ct. never set down the suit as ex parte against those defts. In law, therefore, anyone of them or all could come & appear at any time in course of the hearing & contest the suit. They might or might not have the necessity for summoning any witnesses or producing any documents. On the date of hearing the pltfs. as well as defts. 4 to 12 filed petns. for adjournments. The Ct. rejected the prayers of both & called upon them to take further steps in the suit. Following this order, defts. 4 to 11 intimated their readiness to go on with their defence & filed Hazira of their witnesses. The pltfs., however, did not take any further steps. Under the circumstances, the Munsif dismissed the suit under Order 9, Rule 8, C.P.C. Then followed an appln. under Order 9, Rule 9 for restoration of the suit to its orginal file. This petition was registered as Misc. case. no. 24/48. On a date later than it was registered, the 2nd Addl. Munsif, Cuttack, passed this queer & unusual order : "Requisites filed. Issue notice on the contesting Opp. Parties 4 to 11 fixing 27-4-48 for return." Overriding the earlier order to issue notice to all opposite parties. According to this order, notices of the petn. for restoration were issued .& served upon defts. 4 to 11. Accordingly, no notices were issued to defts. 1, 2, 8 & 13. The petn. therefore, was heard in presence of those defts. only & was allowed. As against this, the present revn. has been filed.

(2.) The contention of Mr. Mohanti, the learned counsel for the petnrs., is that the proceeding is illegal & the order invalid, in as much as, as required under Order 9, Rule 9(2), that no such order of restoration can be made until notices of the appln. had been served on all the opposite parties. Prom the petn. for restoration it appears that all the defts. in the suit had been arraigned as opposite parties. It is difficult to understand how could the learned Munsif at that stage discriminate some of the opposite parties as against the others on the ground that same were contesting & others not. It appears that 4Ms Order no. 44 dated 6-4-48 in Misc. Case. No. 24/48, is to the order of the pltfs. but not as required by law we take a serious notice of this sort of order which implies nothing but slackness & negligence on the part of the Presiding Officer as welt as of the Bench Clerk concerned.

(3.) We have now to consider whether this omission invalidates the order. Mr. Misra, appearing for the opposite parties, has invited our attention to two decisions, one of Allahabad H. C. & the other of Bombay H. C., in support of his contention that the order was partly under Order 9, Rule 3 & partly under Order 9, Rule 8 according as it was against non-appearing defts. & the appearing ones. Those oases do, no doubt, spilt the order in that fashion. The references are Makundi Singh v. Prabhu Dayal, A. I. R. (13) 1926 ALL. 169 : (48 ALL. 97) and Damu Diga v. Vakrya Nathu, A.I.R. (7) 1920 Bom. 54 : (44 Bom. 767). Those oases, however, do not relate to a proceeding for restoration of the dismissed suit but concern with right to fresh suit on the same cause of action against those defts who did not appear on the date of hearing of the previous suit. As the point as was considered by their Lordships, is not before us, I should reserve my opinion with regard to the correctness of these decisions with great respect for an occasion when it arises.