KISHUN PRASAD Vs. HARDWAR SINGH

JUDGEMENT

(1.) The petitioner brought a suit for rent. The substantial question at issue between him and the defendant was whether the total rental was Rs. 135 as alleged by him or Rs. 35-8-3 as alleged by the defendant.

(2.) On 23 September 1943 the plaintiff was granted time to produce certain documentary evidence on payment of Rs. 6 as adjournment costs. The payment was made a condition precedent to the hearing of the suit. There were several adjournments, and finally the suit was called for hearing on 25 February 1944 when the order sheet shows that the plaintiff did not pay the costs, and, therefore the suit was decreed according to the rate admitted by the defendant. On 28th February 1944 the petitioner filed an application which headed as under Order 9, Rule 9 and Section 151, Civil P.C., for restoration of the suit. This application was rejected on 19 June 1944 on the ground that it was not maintainable, and that the plaintiff's remedy was to file an appeal against the decree dated 25 February 1944. The petitioner has, therefore, moved this Court.

(3.) Now, I cannot agree with the view which has been expressed by the learned Munsif for dismissing the application by his order dated 19 June 19ii, but it seems to me that this petition should fail on another ground. I am of the opinion that the application dated 28 February 1944 did lie under Order 9, Rule 9, and, therefore, when it was rejected on 19 June 1944 the petitioner's remedy was by an appeal to the District Judge.