MEHJABEEN SIMON Vs. FAYAZ AHMAD SIMON

JUDGEMENT

(1.) This order will govern the revision petition in hand presented by Mr. Z. A. Shah on behalf of the petitioners assailing the order dated 7th Feb., 2005 whereby the application title as Mahajabeen Simon v. Fayaz Ahmad Simon for restoration of suit titled as Mahajabeen Simon v. Fayaz Ahmad Simon stands rejected. The said order shall be hereinafter referred to as impugned order.

(2.) Heard.

(3.) Mr. Shah argued that the order dated 24th March, 2004 has not been passed in terms of Order 9, Rule 3, CPC, but has been passed in terms of Section 151, CPC. The suit can be dismissed in terms of Order 9, Rule 3, CPC only when the parties have notice of the hearing. Article 181. governs the application for restoration and not Article 163 of Limitation Act. The Vakalatnama has been filed subsequently in the restoration application, thus is compliance under law. If the Court holds that the suit has been dismissed in terms of Order 9, Rule 3, CPC even then notice for restoration is not required in terms of Order 9, Rule 4, CPC, because the suit has been dismissed in absence of both the parties. In the given circumstances Article 163 of the Limitation Act is applicable and the prayer for condonation of delay is to be made but no formal application for condonation of delay is required to be made even oral prayer is enough.