MILKHI RAM Vs. LAL SINGH AND OTHERS

JUDGEMENT

(1.) IN a suit for dissolution of partnership and rendition of accounts, a preliminary decree was passed by the Senior Subordinate Judge, Simla on 29th June, 1960. Shri Kailash Chand, Advocate was appointed Commissioner to go into the accounts and submit his report on 27th July, 1960. It is conceded before me that the Defendant was the accounting party. The Plaintiffs were ordered to deposit Rs. 50/ -as Commissioner's fee ; so was Lal Singh contesting Defendant process -fee was to be filed half and half. On 27th July, 1960 the Court called the case twice and dismissed the suit in default.

(2.) THE Plaintiffs thereupon applied for restoration of the suit under Order 9, Rule 4, read with Section 151, Code of Civil Procedure. Lal Singh contested its restoration. The Court below framed a formal issue whether there were sufficient grounds for restoring the suit and after considering the respective affidavits filed by the parties decided the issue against the Plaintiffs holding the application not to be tenable Two revisions (Civil Revisions Nos. 607 and 676 of 1961) have been preferred in this Court against the impugned order.

(3.) IN my opinion, it is not necessary for me in this case to enter into the controversy whether such an order is an absolute nullity being without jurisdiction or it requires to be set aside, because the Plaintiff actually applied to have the dismissal in default set aside and the suit restored.