MANIK MANDAL Vs. BHAROSI SINGH

JUDGEMENT

(1.) This application is by the plaintiffs and is directed against an order of remand passed by the learned Additional Subordinate Judge of Monghyr on 6-10-1955, in Title Appeal No. 39 of 1955.

(2.) The events leading to the presentation of the application are these: The petitioners instituted a suit for confirmation of possession, and, in the alternative, for recovery of possession after declaration of their title to the suit land. They also prayed for an adjudication that the defendant was not an under-raiyat in respect of the suit land. It appears that on the date fixed for the hearing of the suit, the defendant was present with his lawyer in court, but the petitioners did not turn up and the suit was dismissed for default on 15-3-1955. On the same date, the petitioners filed an application for setting aside the order of dismissal, and the learned Munsif, without registering the application as a miscellaneous case, and without giving any notice to the defendant, recalled the order of dismissal then and there, and proceeded to hear the suit. Two formal witnesses were examined and cross-examined on that date, though the defendant with his witnesses had left the court after the dismissal of the suit for default. The hearing of the suit thereafter proceeded on several dates and both the parties examined their witnesses though the "defendant in an application made on the next day stated that he was proceeding with the suit without prejudice to his legal rights as regards the recalling of the order of dismissal. Ultimately, the suit was decreed by the learned Munsif, and the defendant preferred an appeal before the District Judge. The appeal was heard by the second Additional Subordinate Judge of Monghyr, and it was contended before him that the order recalling the order of dismissal without giving notice to the defendant was without jurisdiction and that, therefore, the decree passed in the suit vitiated in law. The learned Additional Subordinate Judge accepted this contention and held that the trial had been without jurisdiction. He, therefore, set aside the judgment and the decree of the trial Court and remanded the suit to the trial Court with a direction for rehearing the application for setting aside the order of dismissal after registering the same as a miscellaneous case and giving notice thereof to the defendant. Being thus, aggrieved, the plaintiffs have moved this Court in revision.

(3.) Mr. Kaushal Kishore Sinha, appearing for the petitioners, has contended that the order of remand is bad in law inasmuch as the order setting aside the dismissal of the suit could not ,be challeng- ed in an appeal from the final decree passed in the suit. In support of this contention he has relied on Section 105 (1) of the Code of Civil Procedure which states that, save as otherwise expressly provided, no appeal lies from any order made by a Court in the exercise of its original or appellate jurisdiction but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. It has been contended that in order that any error, defect or irregularity in any order may be set forth as a ground of objection in the appeal from the final decree it must be such an error, defect or irregularity which affects the decision or the case on merits. It has been submitted that the order setting aside the order of dismissal has the effect of ensuring the hearing of the suit on merits and it does not affect the decision of the case on merits, and, as such, the order could not be challenged in the appeal. On the other hand, Mr. J. C. Sinha appearing for the defendant-opposite party, has relied on Section 99 of the Code of Civil Procedure which says that no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of any misjoinder of parties and causes of action or any error, defect or irregularity in any proceedings in the suit, nor affecting the merits of the case or the jurisdiction of the court. He has laid stress on the words "the jurisdiction of the court," and has submitted that the order setting aside the dismissal of the suit without giving notice to the defendant was without jurisdiction and, therefore, the error, defect or irregularity in the proceeding for setting aside the order of dismissal could be challenged in an appeal from the final decree. In support of his contention that the order setting aside the dismissal of the suit was without jurisdiction, he has relied on the provisions of Order 9 Rule 9(2) of the Code of Civil Procedure which lays down that no order shall be made under this rule unless notice of the application has been served' on the opposite party. His contention is that admittedly in this case no notice of the application for setting aside the order of dismissal was given-to the defendant and, therefore, the court could not pass an order setting aside the dismissal under Sub-rule (1) of Rule 9 or Order 9.