DAYA CHAND Vs. RAM PHAL

JUDGEMENT

(1.) THE facts giving rose to this revision petition are these. On 8th September, 1966, Badlu and his brother Mange sold the property in dispute to Daya Chand for rs. 5,500/ -. This led to a suit for pre-emption, which was filed by Ram Phal, minor son of Badlu, through his mother Shrimati Natho, on 31st August, 1967. The suit was dismissed in default on 17th April, 1968. On 18th Aril, 1968, the plaintiff filed an application under Order 9, Rule 9, Code of Civil Procedure, for restoration. On 16th May, 1968, the trial Judge directed the plaintiff to deposit process fee for summoning the defendants. This application was dismissed on 6th June, 1968, for non-prosecution. On 7th June, 1968, the plaintiff filed another application for restoration of the first application dated 18th April, 1968. The second application was dismissed in default on 10th June, 1968. Then plaintiff filed an appeal against the order dated 10th June, 1968, before the learned District Judge, Rohtak. On 15th May, 1969, the learned Judge set aside the order dated 10th June, 1968 and remanded the case to trial Court for deicing the second application dated 7th June, 1968, on merits. On 7th May, 1970, the second application was so decided and dismissed. The trial Judge found that there was gross negligence on the part of the plaintiff's counsel in not depositing the process fee given to him by his client.

(2.) THEREAFTER, the plaintiff filed an appeal against the order dated 7th May, 1970. On 2nd January, 1971, the learned Senior Subordinate Judge, Rohtak, who was invested with enhanced appellate powers, allowed the same, reversed the finding of the trial Court that the plaintiff had no sufficient cause for not filing the process fee and remanded the case to the trial Judge for deciding the application dated 18th April, 1968, on merits. Against this decision, Daya Chand, defendant, has filed the present revision petition.

(3.) THE sole question that has been argued before me is whether the order dated 7th May, 1970, by which the plaintiff's second application dated 7th June, 1968, had been dismissed by the trial Judge, was appealable or not. If latter be the case, then the impugned order would be without jurisdiction. On this point, there is admittedly divergence of judicial opinion. Lahore, Pepsu, Bombay and Madras High courts have taken the view that such an order is not appealable, while a Bench of the Oudh High Court has taken a contrary view. Reference in this connection may be made to Lok Nath v. Mt. Sattan Bai, AIR 1923 Lah 302; Hira Lal Jwala Sahai v. Sitla Kahna, AIR 1951 Pepsu 82; Kalookhan Fazledin v. Surji Vallabhadas, AIR 1947 Bom 328; Laxmi Investment Co. Pvt. Ltd. Akola v. Tarachand Harbilas, AIR 1968 Bom 250; Sadaya Padayachi v. Chinnaswami Naidu AIR 1935 Mad 609 and rameshwar Dutt v. Harihar, ILR 13 Luck 246=air 1937 Oudh 344.