HARIDASS Vs. RAO BHAGWAT SINGH

JUDGEMENT

(1.) THE opposite party Rao Bhagwat Singh filed a suit against Hari Dass and Ram Sahai in the Court of Munsif, Jaipur City West. Both the defendants filed a written state-ment. On the day of hearing the plaintiff was found absent but Ram Sahai was present in person and Hari Dass's counsel was also present. THE suit was dismissed for default of the plaintiff. Subsequently the plaintiff filed an application for restoration of the suit but impleaded only Ram Sahai as the opposite party. In their knowledge noticed was sent only to Ram Sahai and not to Hari Dass. Over looking the fact that Hari Dass was not a party to the application for restoration and no notice had been given to him, the court set aside the order and restored the suit. This order was made on the 8th July, 1951. On the 21st August, 1950, a notice was issued to the applicant Hari Dass that suit has been restored and he should appear in court on a certain date. Hari Dass put in an objection that no notice had been sent to him and consequently suit has been wrongly restored. Meanwhile the case was transferred to the Court of Additional Munsif Jaipur City who heard the objection and while holding that restoration should not have been made against Hari Dass without a notice to him dismissed the objection on the ground that he had no power to revise the order of his predecessor in office. Hari Dass filed two applications for revision (1) against the restoration of the suit dated the 8th July, 1950 and the other against the order of the Additional Munsif Jaipur City dated the 9th October, 1950 dismissing the objection of Hari Dass and maintaining the order for restoration.

(2.) THE opposite party has not appeared nor has any counsel put in any appearance on his behalf. I have heard Mr. P. N. Dutt on behalf of the applicant. He has referred to Rule 9 of Order 9 Civil Procedure Code which provides that no order shall be made under this rule unless notice of the application has been served on the opposite party. In the present case the applicant was neither made a party to the application for restoration nor was any notice served upon him. THE learned Munsif, therefore, committed a breach of mandatory provision of law. He therefore, committed illegality in the exercise of his jurisdiction in restoring the suit against Had Dass. This order cannot be maintained. Although no limitation has been prescribed in the Limitation Act yet according to the rules of this Court if an application for revision is not made excluding the time properly spent in obtaining any copy within ninety days required to be submitted with the petition, it would be treated as 'prima facie made without such diligence as ought ordinarily to be shown to entitle the petitioner to the relief in this revision. In this case he could not know about the order up to the 4th August, 1950 and twenty one days were taken in the copying department for the copy of the order. Excluding the period of twentyone days the application for revision will be within 90 days from the date on which the notice was received of the suit having been restored. THE presumption of want of diligence is, therefore, rebutted in the present case.