MIJANUR RAHMAN Vs. TAJUDDIN AHMED

JUDGEMENT

(1.) THIS is an application under Section 115 read with Section 151, Code of Civil Procedure directed against the order dated 8.3.82 passed by the learned Assistant District Judge, Barpeta in Misc. (J) Case NO. 68 of 1981 rejecting the application of the Petitioner under Order 9 Rule 9 of the Code of Civil Procedure which was preferred for restoration of the Misc. (J) case No. 63 of 1981 dismissed for default. The Petitioner has also impugned the order dated 3.7.81 passed by the learned trial Court in dismissing the Title Suit No. 29 of 1979.

(2.) I have heard Mr. D.K. Talukdar, the learned Counsel for the Petitioner as well as Mr. A. Ali, the learned Counsel appearing on behalf of the Respondent an length. A preliminary objection has been raised by Mr. Ali, the learned Counsel for the Respondent as regards the maintainability of the revision petition. According to the learned Counsel the order complained of as impugned herein is an appeasable order and appeal lies under Order 43 Rule 1(c) of the Code of Civil Procedure Mr. D.K. Talukdar, the learned Counsel for the Petitioner has drawn my attention to the decision of this Court rendered in, (1984) J.G.L.R. 442 (Anil Chandra Roy and Ors. v. Uma Kanta Roy and Ors.) and also the case as reported in, (1983) 2 G.L.R. 189 (Sri Ambika Moral v. Sri Tamizul Hoque and Anr.) In Anil Ch. Roy (supra) this Court held that two remedies are available to the Petitioner, namely, (1) either he can apply for restoration under Order 9 Rule 9 of the Code of Civil Procedure or under Section 151, Code of Civil Procedure as the case may be and (2) the Petitioner may prefer an appeal under Order 43 Rule 1(c) of the Code of Civil Procedure and in case he avails the remedy of preferring a petition under Order 9 Rule 9, Code of Civil Procedure the consequences of the order is subject to revisional jurisdiction of this Court and not by way of an appeal, Accepting and adopting the ratio of the aforesaid decision, I am constrained to hold that the revision is competent and as such, the preliminary objection as raised by Mr. Ali is not accepted on merit.

(3.) I have perused the impugned orders passed in both the Misc. Cases and taking into the totality of the ratio of both the orders of dismissal of the light of the order rendered on 3.7.81 in the original Title Suit, I any convinced that the reasoning of the learned trial Court in rejecting the prayer of the Petitioner is not acceptable. On 3.7.81 while the suit was called in for hearing, the leaned trial Court dismissed the suit by the order as quoted hereinbelow: