SHEIKH YARUDDIN Vs. BDAS

JUDGEMENT

(1.) In this application the defendants to a title suit ask for revision of an order allowing an application under Order 9, Rule 9, Civil P.C., by the plaintiff and restoring the suit which had been dismissed for default.

(2.) The point taken is that on the learned Munsif's own findings the application should have been dismissed. He did not find the necessary facts upon which an application under Order 9, Rule 9 could have been allowed. Rather, on the contrary, he held that the plaintiff had not shown sufficient cause for his non- appearance when the suit was called on for hearing. Nevertheless, he proceeded to allow the application merely because the plaintiff was a Receiver and he thought the estate which the Receiver represented could not equitably be penalised for the Receiver's negligence, and justice would be better done by restoring the suit and compensating the defendants in costs. The Munsif's order, it is said, was not one in effect under Order 9, Rule 9, and could only be interpreted as the use by the Munsif of his inherent powers under Section 151, Civil P.C. He had, however, no jurisdiction to resort to Section 151, when there was a specific provision for dealing with such cases, namely, Order 9, Rule 9.

(3.) In the course of his order the learned Munsif did make observations justifying this criticism. He said: There can be only one opinion that this is a worst case of negligence.... The facts and circumstances of the case justify to me to reject this petition. He then goes on to say: It would be against justice and equity if the proprietor is punished for the fault of the Receiver.... I would, therefore, restore the suit on payment of Rs. 50 to the contesting defendants 4 to 6, but I hope this penalty although apparently high will be an eye opener to the Receiver and his staff in future.