GOVERDHAN SAHAYA S/O. MUNSHI SUMERILAL Vs. HEMRAJSINGH RATANSINGH, MUNICIPAL SECRETARY, BALAGHAT AND ANOTHER

JUDGEMENT

(1.) THIS is an application for revision under Section 115, Civil P.C., against the lower Court's order dismissing the application which the plaintiffs (applicant and non-applicant 3) made on 21st August 1942 asking that their suit in the Court below against defendants-non-applicants 1 and 2 may be revived and proceeded with. In view of another suit between the parties, the suit in the Court below was stayed by the lower Court's order dated 27th March 1939 against which plaintiff 1 filed an application for revision in this Court (Civil Revision No. 426 of 1939). The order-sheets show that meanwhile the case was merely being put off from time to time without any hearing being fixed as such and both the parties were throughout remaining absent. Originally the suit was in the Court of the Second Class Subordinate Judge, Balaghat, but on 27th April 1940 it went by transfer before the First Class Subordinate Judge. The order-sheet of that date is as follows: Reoeived by transfer on 14th June 1940. Parties absent. Record not received. Case for 25th September 1940. The revision application of the plaintiff was allowed on 4th September 1940 with the result that the lower Court's order dated 27th March 1939 staying the suit was set aside. On 25th September 1940 the lower Court appears to have called the case and made the following order: Parties absent. It will be found that since long the parties have been remaining absent in this case. I therefore dismiss the suit in default of the parties. It is 3-50 P.M.

(2.) THEN on 8th December 1941 the plaintiffs applied to the lower Court for proceeding with the suit. But on 9th December 1941 the following order was made by the Court: The C.S. Register shows that this suit was dismissed in default on 25th September 1940. No action can therefore be taken on the application of the plaintiff. The plaintiff may either apply for restoration of the suit to file or should apply for revival of the suit. The application is therefore filed. The plaintiffs therefore made an application on 21st August 1942 praying that the suit may be taken on file and be proceeded with and that powers under Section 151, Civil P.C., may be exercised. It is this application which the lower Court has dismissed by order dated 19th January 1943 against which the present application for revision has been filed. The learned Judge of the lower Court has held that the dismissal of the suit on 25th September 1940 was under Order 9, Rule 3, Civil P.C., and that the remedy of the plaintiff was by way of an application for restoration under Order 9, Rule 4 which had to be made within 30 days. If this view is wrong it follows, as the learned Counsel for the applicant contends, that his correct remedy was under Section 151, ibid, and that the lower Court failed to exercise jurisdiction vested in it by law in dismissing the plaintiff's application dated 21st August 1942 as untenable. The order-sheets in the case between 21st June 1939 and 25th September 1940, do not appear to bear the construction that the suit had been fixed on those dates and nine other dates which intervened for hearing. The order-sheet next preceding one dated 21st June 1939, is the order, sheet dated 27th March 1939 which records that the suit had been stayed, and if therefore the suit had thus been stayed, the dates, which were being subsequently fixed from time to time, could not be the dates for hearing. In Chandar Shekhar v. Amir Begam this is what has been observed: We, however, think that the provisions of Order 9, Rule 3, are not at all applicable to the facts of these cases. Rule 1 of the order contemplates proceedings following upon the fixing of a date for the appearance of the defendant. Rule 3 expressly states that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. It is, therefore, apparent that unless a date has been fixed for the appearance of the defendant and neither party appears when the suit is called on for hearing on that date Rule 3 would not apply. On 27th April 1940, on which date the case was put off for 25th September 1940, the Order of stay was still operating, so that, when on that date the case was set down for 25th September 1940, it could not have been fixed for hearing and the fact that between those two dates the order of stay was set aside by this Court, makes no difference. The learned Counsel for the applicant rightly relies on Fakir Singh v. Secy. of State A.I.R. 1928 Lah. 751 where the following view has been taken: