ICHHAMOYI PAL Vs. PEARYMOHAN SHAH

JUDGEMENT

(1.) THE facts of this ease are rather complicated and the parties have been fighting over this matter for over 12 years; but they may be shortly stated in order to understand the position of the parties to this Rule. THE plaintiff brought a suit against a 21 defendants for recovery of possession of a certain property on the allegation that they had joined in dispossessing him. He got a decree in the first Court against all the defendants. Two of them (defendant Nos. 2 and i) preferred an appeal to the lower Appellate Court making the plaintiff as the only respondent and it was dismissed. A second appeal was filed in this Court which was allowed and the case was sent back to the lower Appellate Court to be reheard after receiving some additional evidence. In the mean time the opposite parties (defendants No. 9, 10, 12 and 13) brought a suit for setting aside the decree passed against them in the original suit by the Munsif. THEir suit was decreed and the decree of the first Court, in so far as it stood against them, was set aside on the ground that they were minors at the time and were not properly represented in the must suit. THE appeal before the lower Appellate Court by the defendants Nos. 2 and 4 came on for hearing after remand after the decision of the opposite a parties suit. THE appeal was partially allowed and the plaintiff preferred a second appeal to this Court against the appellate decree and made all the defendants in the suit respondents to the appeal. A preliminary objection was taken at the hearing of the second appeal that it could not proceed as there was no decree existing against, the opposite party. This contention was given effect to and the plaintiffs appeal was found to be incorporated. THE learned Judges held that the decree in the original suit having been set aside as against defendants Nos. 9, 10, 12 and 13 they could not be considered as proper parties to the appeal; but as the plaintiffs cause of action against all the defendants was joint; the appeal against the other defendants also could not proceed in the absence of those defendants, Nos. 9, 10, 12 and 13. This decision was passed on the 7 July 1922. THE suit that was brought by the opposite party to have the decree in the original suit set aside was decreed on the 31 July 1916 and the appeal against that decree was dismissed on the 17 July 1917. On the 20 September 1917 the plaintiff applied for a rehearing of the original suit against the opposite party on the ground that as the decree against them had been set aside the effect of it was to revive the suit against them and prayed for re-hearing of that suit. No order was passed on this application. After the decision of the appeal by the High Court, namely, on the 3 August 1922 the plaintiff made another application inviting the Court to re-hear the original suit against the opposite party. That application was dismissed by the Munsif against whose order this Rule has been issued. It is now firmly settled that the effect of an order under Order IX of the Code is to revive the original suit namely, to leave the parties in status quo on the date of the decree in the original suit. THE plaintiff was, therefore, left to /apply to the Court to re-hear the suit as against the opposite party after the decree against them had been set aside. THE learned Munsif, however, has dismissed the plaintiffs application to re-hear the suit. I am of opinion that the plaintiffs application was not to ask from the Court an order which was in the discretion of the Court to grant but it was to bring to the notice of the Court that circumstances had happened since the decree was passed--which were calculated to revive the suit and invited the Court to consider it as a pending suit. THE Court was bound to go on with the suit and if at the hearing of the suit it was found that it could not go on on account of some legal defect he might dismiss the suit. But it was not justified in dismissing the plaintiffs application for treating the suit as pending in his Court but it was bound to proceed with the hearing of it. THE order which the Munsif has passed of the plaintiff's application is thus worded : " My conclusion is that the petition is not maintainable. It is dismissed with costs." THE apparent result of this order is that the prayer of the plaintiff for the re-hearing of the suit has been rejected. This the learned Munsif had no jurisdiction to order. It is a matter of grave consequence to the petitioner as he has thus been deprived of his right of appeal and of second appeal to this Court. I, therefore, hold that the order of the Munsif dated the 3 August 1923 dismissing the plaintiff's petition should be set aside and I order accordingly. THE Rule is, therefore, made absolute. THE petitioner is entitled to his costs of this Rule. I assess the hearing fee at one gold mohur.

(2.) LET the record be sent down to the Court below as early as possible so that it may proceed to hear the suit according to law.