SITA RAM Vs. DATA RAM AND OTHERS

JUDGEMENT

(1.) THIS is an application for revision by one, Sita Ram, and is directed against the order of the Subordinate Judge 1st Class, Panipat, dated the 15th of April, 1966, whereby his application for restoration of the suit, that was dismissed for default, was rejected.

(2.) THE learned Judge rejected the application on the ground that, in his opinion, the order dismissing the suit for default amounted to rejection of plaint under Order 7, rule 11 of the Civil Procedure Code. That order was passed because the deficiency of Court fee was not made good. This decision of the learned Judge cannot be sustained for the reason that the order, his predecessor passed, was an order dismissing the suit for default. It the order had been passed under Order 7, rule 11, Civil Procedure Code, the learned Judge would have rejected the plaint; and in that event, the petitioner could have filed an appeal because the rejection of a plaint amounts to a decree. The petitioner has been greatly prejudiced by the order passed by the Subordinate Judge on the 10th of August, 1966, whereby instead of rejecting the plaint under order 7, rule 11, the suit was dismissed This led the petitioner to make an application for setting aside the order of dismissal for default and that order has not been set aside on the ground that the order virtually amounts to an order under Order 7, rule 11. It is fundamental that no party can be made to suffer by a wrong order of the Court and this is what has, in fact, happened in this case.

(3.) THE respondent is absent. He is represented by a counsel. His counsel did not also appear at the hearing. A notice of actual date was sent to the counsel and the case has been on the board for a considerably long time.