RAM NARESH KANOO Vs. HARJASHBIR SINGH

JUDGEMENT

(1.) JUDGMENT :- This revision petition arises from an order dt. 14-3-88 passed by the learned Sub Judge (I) setting aside the order of dismissal of Original Suit No. 39/85/ 13/88 for default of plaintiffs' appearance.

(2.) The suit was instituted by seven (7) plaintiffs against four (4) defendants. The suit was dismissed on 23-6-87 for default of plaintiffs' appearance. Thereafter an application was filed for setting aside the order of dismissal. Defendants 1 and 3 received the notice of the application for restoration of the suit. It is stated at the Bar that the defendant 4 did not receive the notice. There is also no service report whether the summons on defendant 4 has been served or not. As regards the defendant 2, the service report of the process server, is that the summons on defendant 2 could not be served as he died about a year ago. The report is dt. 18-4-88. The admitted position is that the defendant 2 Bharat Prasad Gupta died on 17-10-86 and that no legal heir or legal representative was brought on record. However, the learned Sub Judge dismissed the suit on 23-6-87 and allowed the petition for restoration of the suit by an order dt. 14-3-88 on payment of Rs. 35/- as costs. Hence this petition.

(3.) Mr. N.K. Singh, the learned counsel for the respondents, has raised a preliminary objection as to the maintainability of the petition. The learned counsel has submitted that the petitioners cannot challenge the order of restoration as the petitioners have waived their right to challenge the order by receiving the costs. He has referred me to the decisions in Dhrubendra Deb v. Kumarendra, AIR 1959 Cal 19 and Metal Press Works v. Guntur Merchants Cotton Press, AIR 1976 Andh Pra 205 to support his contention.