MANPHUL SINGH Vs. GRAM PANCHAYAT

JUDGEMENT

(1.) The suit out of which this petition arises was dismissed in default of hearing. An application for its restoration was made before the learned Subordinate Judge, Bhiwani. On July 5, 1971 when this case came up for hearing, the learned counsel for both the parties were present. The learned Subordinate Judge was of the view that yen for the file of the suit, which had been dismissed in default of earing, the petitioner was required to file process fee for summoning the same. Accordingly, he dismissed the application for restoration of the suit. The appeal filed by the petitioner before the learned lower appellate Court was dismissed as incompetent. The learned lower appellate court thought that it was an application for the restoration of the main case. This is, however, not true. An appeal does lie against an order disallowing an application for restoration of the suit under Order 43, Rule 4(c) of the Code of Civil Procedure. Since the original order passed by he learned Subordinate Judge suffers from a patent error, it would not be proper to send the parties to the learned lower appellate Court. I, therefore, allow this Petition and remand this case to the learned trial Judge for a fresh decision on merits on the point whether the suit should be restored or not. It will be the duty of the learned Subordinate Judge to have the file of this case summoned from the record room will cut payment of process fee. The parties through their learned counsel and directed to appear before the learned trial Judge on September 8, 1975.