ABDUL HAQUE Vs. KUTUBUDDIN AHMED

JUDGEMENT

(1.) This is plaintiffs application which challenges validity of the order passed on 21-12-1981 by the trial Court by which the said Court refused to set aside the order passed on 11-12-1980 dismissing the suit for default.

(2.) However, the threshold objection to the maintainability of the petition raised by the learned counsel for the O.P. No. 1 has to be considered first before dealing with the merits of the petitioner's grievance. Mr. B. C. Sarma, appearing for O.P. No. 1, contends that this revision application is not maintainable inasmuch as the impugned order must be deemed to be an order passed under O.9, R.9 CPC against which an appeal lies. His submission is that although the plaintiff petitioner had filed the application against the order dismissing the suit under O.9 R.4 CPC treating the said order as one passed under R.3 thereof the said order on the facts of the case could only be an order contemplated under R.8. Because, submits learned counsel, on 11-4-1980 when the suit was dismissed for default, the defendant/O.P. 1 was present in the Court and therefore R.3 of O.9 could not be attracted.

(3.) It is true that in the order dt. 11-12-1980 it was merely mentioned that when the suit was called on for hearing the plaintiff was found absent and the order on its face does not manifest that "neither party" appeared when the suit was called on for hearing as contemplated under O.9 R.3. However, Mr. B. C. Sarma, learned counsel for the plaintiff/petitioner made a three-fold submission to rebut the contention. His first submission is that the impugned order dt. 21-12-1981 ex facie shows that the Court itself accepted the position that on 11-12-1980 the order dismissing the suit was passed under R.3 of O.9 CPC as it is mentioned in the order the arguments were heard under R.4 thereof. His next submission is that although the application for setting aside the order passed on 11-12-1980 was manifestly made under R.4 of O.9 and the O.Ps. had opportunity to contest the application, none did. Indeed, submits learned counsel, O. P. No. 1 appeared in the Misc. Case No. 9/81 in which the plaintiff's application was heard but, as per order passed therein on 4-11-1981, he filed no objection and accordingly the Court fixed 21-12-1981 for ex parte hearing of the Misc. case. It is further submitted that even in this Court at para 5 of the petition the plaintiff/petitioner made a categorical statement that defendants did not appear to contest the suit on 11-12-1980. Yet, O. P. No. 1 who is opposing the revision application has not contested this position and indeed he has filed no counter at all to rebut any statements and submissions made by the petitioner in the revision petition. The last submission of Mr. Sarma is that the order dated 11-12-1980 could not be an order under R.8 of O.9 because the presence of the defendant on that date to contest the suit is not recorded therein.