E C DECRUZE Vs. MRSLTPITTS

JUDGEMENT

(1.) This is an application presented by the defendant in a pending Small Cause Court suit. The proceedings have had a somewhat chequered history and the recital of a few dates will help to make matters clear. The suit which was for a claim of Rs. 447 was based on a handnote bearing date 16 June 1929, and was instituted on 15 June 1932. Summons was issued fixing 15 July 1932 for disposal and the serving officer returned the summons unserved on 6 July 1932. On 15 July 1932 the plaintiff put in appearance and was directed, the summons having comeback unserved, to take steps by the following day. The order sheet does not say what steps. On the 16 the plaintiff petitioned for time and the case was adjourned to 21 July for taking step. The order sheet does not say what step. On 21 July 1932 no step was taken.

(2.) The order was "put up tomorrow for orders." On 22 July, no step was taken. The plaintiff did not respond on call and the order passed was "that the suit be dismissed for default." The order does not show under what provision of law it was passed; but it appears to have been supposed that the order was passed under Rule 2 or Rule 3 of Order 9. On 17 November 1932 the plaintiff presented an application under Order 9, Rule 4, applying for an order setting aside the dismissal, Order 47, Rule 1, is also mentioned in the petition; but the petition was treated as coming under Order 9, Rule 4. As a matter of fact the necessary court-fee for an application for review under Order 47 was not paid and moreover it has been held that an application under Order 47, Rule 1 designed merely to escape the consequences of the law of limitation is not maintainable when the proper remedy was an application under Order 9, Rule 4 or Rule 9 and the period of limitation for such an application has expired. The plaintiff alleged that through negligence of her lawyer she had come to know of the dismissal of the suit only on 17 November 1932.

(3.) Her application was taken up on 3 December 1932 and was granted on 5th December 1932 and the suit was restored to the file. This was done without notice to defendant. Thereupon summons was issued and defendant appeared on 10th February 1933 and was granted time till 17 February 1933 for filing written statement. In the meantime he inspected the record and moved the Court to review its order passed on 5 December 1932 on the ground that the plaintiff's application for restoring the suit was filed out of time and should not have been allowed.