BHAJAN SINGH Vs. GANESHI DEVI

JUDGEMENT

(1.) THE short question which arises for determination in this petition under S. 115 of the Code of Civil Procedure is whether an application is maintainable for restoration of a previous one dismissed for default, that previous one having been filed with a prayer to have a suit dismissed for default restored, and has arisen in this way. The petition before us is the defendant in a suit which was filed in the court of the subordinate Judge, Second Class Amloh. The suit was dismissed for default under the provisions of R. 8 of Order IX of the Code of Civil Procedure on the 3rd of January, 1974. An application dated 11th of January, 1974, for restoration of the suit was filed by the plaintiff-respondent on the 14th of January, 1974, but that application was itself dismissed for default on the 22nd of February, 1974. Four days later the plaintiff--respondent filed another application with the prayer that the application dated the 11th of January, 1974, be restored. The learned Subordinate Judge accepted the prayer and restored the first application through an order dated 19th May, 1975, which is challenged in the petition before us.

(2.) THE matter in issue is not res integra. In Abdul Rahman Shah v. Shahana, AIR 1920 Lah 304. Petman, J. , expressed the opinion that an application under R, 9 of Order IX of Code of Civil Procedure was competent if it sought the restoration of an earlier application seeking restoration of the suit in the event that the suit and the said previous application had both been dismissed for default. Reliance was placed by Petman, J. , on the provisions of Section 141 of the Code. That section stood thus when the impugned order was made: "the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. " The provisions of the section are very wide in their amplitude and there is no reason why any restricted meaning should be attached to them in the absence of any indication to that effect in the language employed. An application under Order IX, R. 9 of the Code is certainly a proceeding in a Court of civil jurisdiction and, therefore, the procedure provided in the Code in regard to suits has to be followed in respect thereof. In other words, if an application of that type is dismissed for default, the procedure available to the aggrieved party would be the same as is open to a plaintiff when his suit is dismissed for default. This was also the opinion expressed by a Full Bench in Natty Parsed v. Singh Kapurchand, AIR 1976 Madh Pra 136. We might add that the view that an application is competent for restoration of a previous one dismissed for default when such previous one seeks a restoration of the suit which was itself dismissed for default was also expressed in Lok Nath v. Mst. Sattan Bai, AIR 1923 Lah 302 (2), Ganesh Prasad v. Bhagelu Ram, AIR 1925 All 773, and Nand Lal v. Jetha Ram, AIR 1929 Lah 878 none of which, however, refers to the provisions of S. 141 of the Code; while no decision to the contrary has been cited before us.

(3.) PETITION dismissed