ABDUL HAKIM Vs. SUKHA

JUDGEMENT

(1.) THIS revision has been filed against an order of the S. D. O. Tonk dated 8. 8. 57. The facts of the case in brief are as below: - The applicant filed a suit against the opposite-party which was dismissed in default of both the parties and their counsels on 20. 2. 56. I he same day the plaintiff applicant field an application for restoration which was allowed and he was directed to produce ex parte evidence Again on 18. 6. 56 the suit was dismissed in default of the plaintiff applicant and the counsel. It was again restored on 21. 6. 56 and was decreed ex parte on 26 6-56. The counsel for the opposite party filed an application before the learned S. D. O. for setting aside the ex parte decree. 1 his was allowed by the S. D. O. on the ground that when the suit was restored it was necessary to have given notice of the next date of hearing to the defendant opposite-party and as it was not done, the ex parte decision was illegal. In support of this he relied on 1933 All. page 522. Accordingly he directed that the exparte decree be set aside and evidence be recorded of the parties in the case. It is against this order that the present revision has been filed before us. The contention of the learned counsel for the applicant is that the trial court had no jurisdiction to set aside the ex parte decree on the ground that the opposite party was not informed of the date of hearing of the case after it was restored to its original number. It was pointed out that it was not necessary for the trial court to have given a notice to the opposite-party against whom an ex parte decree was passed. No authority has been cited in support of this contention. It is true that under Or. 9 rule 3 C. P. C. if a suit is dismissed in default of the parties notice to the defendant is not necessary for restoration under Or. 9 rule 4 C. P. C. but where the suit is restored on the date fixed for the hearing of a case the defendant as of a right is entitled to notice of such date AIR i945 Nagpur page 185 as well as AIR 1933 page 522 are authorities on this point. The learned S. D. O. in our opinion therefore rightly directed that the ex parte decree be set aside as the same was passed without giving amy notice to the opposite party defendant after restoration of (he suit which had been dismissed earlier in default of the parties. Accordingly we dismiss this application and confirm the order given by the S. D. O. .