AMAR SINGH Vs. MOHINDER SINGH

JUDGEMENT

(1.) Mohinder Singh, respondent, filed a suit for the recovery of Rs. 1,900/- on the basis of a pronote executed in his favour by Amar Singh, petitioner. After the framing of issues, the case was fixed for recording of plaintiff's evidence on February 8, 1971. On the said date, in spite of the case having been called three times, none of the parties appeared before the trial Court. The suit was, therefore, dismissed in default under Order 9, Rule 3 of the Code of Civil Procedure (hereinafter referred to as the Code). The plaintiff-respondent filed an application for restoration of the suit on the averment that his absence at the time when the case was called was due to the fact that be had gone away to urinate. The application was, however, resisted by the petitioner and it was contended that the non-attendance of the plaintiff was deliberate and without any reasonable or sufficient cause. The trial court framed the necessary issue and allowed the parties to lead evidence in support of their respective contentions. The respondent rest content by making a deposition as his own witness. The petitioner, however, examined two witnesses apart from stepping into the witness box as his own witness. After giving due consideration to the evidence produced by the parties, the trial Court held that the respondent was not present in court when the case was called and that he had reached the Court after the dismissal of the suit. As such he had failed to bring out a reasonable ground for setting aside the dismissal of the suit. The application of the respondent for restoration of the suit was, therefore, dismissed.

(2.) Against the aforesaid order of the trial Court, the respondent carried an appeal to the Senior Subordinate Judge, Ludhiana, exercising enhanced appellate powers. The appellate Court reversed the finding of the trial Court and while accepting the application filed by the respondent, allowed the restoration of the suit subject to payment of Rs. 30/- as costs by him. The present revision petition is directed against the order of the Senior Sub Judge, Ludhiana.

(3.) This revision petition has to succeed on the short ground that against an order passed under Order 9, Rule 4 of the Code, no appeal is competent and the learned Senior Subordinate Judge, in entertaining and deciding such an appeal acted in exercise of jurisdiction not vested in him under the law. An order under Rule 4 of Order IX refusing to restore the suit dismissed in default under Order 9 Rule 3, does not find place in the list of appealable orders as contained in order XLIII Rule 1 of the Code. It appears that this fact did not come to the notice of the Senior Subordinate Judge at the time of hearing of the appeal. The lack of jurisdiction to adjudicate is a matter which goes to the root of the case and an error in this behalf has to be rectified as soon as it is brought to light. The learned counsel for the respondent has hardly any submission to make in regard to this point except that the restoration of the suit was allowed on payment of Rs. 30/- as costs, which may have been received by the petitioner. There is nothing on the record to show if it is so. In any case the receipt of the amount of costs cannot confer jurisdiction where it does not vest under the law.