S BEANT SINGH Vs. H NUR MOHD

JUDGEMENT

(1.) THIS is an application in revision against the order of the learned Second Addl. Munsiff dated 2 -3 -65 whereby he has restored the suit of the respondents which was dismissed in default on 3 -7 -1965.

(2.) IN a suit for ejectment brought by the respondents against the petitioner and another person, Gajendra Singh, the plaintiff did not appear either personally or through his counsel on 3 -7 -65, The present petitioner, who is defendant No. 1 in the suit, appeared on that date. The suit was dismissed for default of the plaintiffs appearance. An application was made by the respondent on 10 -7 -65 with the allegation that he was misled about the date of hearing According to him the date of hearing was 10 -7 -65 which date he had entered in his diary. The learned Munsiff, without giving notice to the present petitioner who was present on the date of the dismissal of the suit, i, e., 3 -7 -65 and without taking any evidence or even getting an affidavit from the respondent, restored the suit by means of the impugned order. The petitioner challenges the order in revision.

(3.) MR Satyapal. learned counsel for the respondent, has taken objection that a revision does not lie. According to him if the order of restoration has been made without notice to the defendant whose presence was recorded on the date of dismissal, it is at best an error of law and no revision lies. Mr. Nanak Chand has challenged the order under revision on the ground that it was passed in contravention of the mandatory provisions of O. 9 r. 9 (2) of the Civil P. C. which enjoins giving of notice to the other side before an application for restoration in such a case was granted. He has further argued that no evidence was taken by the trial court in support of the application. Mr. Satyapal has relied on AIR 1949 P. C. 156 and AIR 1927 Cal. 938. These authorities no doubt lay down that an error of law is no ground for revision. Although this authority has not been cited by Mr. Satyapal, there is a nearer authority on this point which is reported as AIR 1959 Patna 225. In that case a Division Bench of that High Court consisting of Ramaswami C. J. (as he then was) and Chowdhury J. have held that failure to comply with the provisions of O. 9 r. 9 (2) of the Civil P. C. for setting aside an order of dismissal without giving notice to the defendant does not in any way affect the jurisdiction of the court, although in doing so it commits an error of law. There are, however, authorities to the contrary. It has been held that an order of restoration under O. 9 f. 9 without issuing notice to the defendant is void (See AIR 1951 Orissa 266). In AIR 1923 Madras 177 it was held that where a suit is dismissed for default and the court refused to restore it on the ground that it was made on merits without going in the reasons for the plaintiffs absence, the order was held revisable.