V KUNHIKRISHNA REDDI Vs. RAMARAJU

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S. No. 328 of 1943 on the file of the District Munsiff's Court, Trivellore. The suit was dismissed on the 25 September, 1944, for default of the appearance of the plaintiff. The plaintiff through his vakil Mr. M.S. Parthasarathi Aiyangar filed a petition under Order 9, Rule 9 of the Civil P. C. on the 24 October, 1944, within time, to have the suit restored to file; but, in doing so, the vakalat on behalf of the vakil I was defective. In the body of the vakalat the name of Mr. T.E. Raghavachari was mentioned but his name was not struck off and Mr. Parthasarathi Aiyangar | entered; but Mr. Parthasarathi Aiyangar had endorsed on the vakalat accepting the same. The Court returned the vakalat and the petition on the 31 October, 1944, as the vakalat was defective and four days time was given for rectification. This was complied with and the petition and the vakalat were re-presented to Court on the 4 November. The learned District Munsiff dismissed the petition on the ground that the earlier presentation on the 24 October, 1944, was not a proper presentation of the petition and that by the 4 of November, 1944, the petition was barred by limitation as under the Limitation Act a statutory right accrued to the respondent.

(2.) A preliminary objection was taken to this petition that no petition lies to this Court as an appeal lies from an order under Order 9, Rule 9 to the District Court. When a petition is filed under Order 9, Rule 9, Sub-section (2) of the rule provides that no order shall be made under the rule unless notice of the application has been served on the opposite party. Therefore the order now sought to be revised, which admittedly was passed without notice, cannot be considered to be one passed under Order 9, Rule 9. If it is an order under Order 9, Rule 9, it is to the District Court and not to the High Court, that an appeal lies. Under Section 115 of the Civil P. C. the High Court can interfere in revision in all cases where no appeal lies directly to the High Court.

(3.) On the merits, I consider that the earlier presentation on the 24 October, is a proper filing within time and the fact that the vakil's name was not entered in the body of the vakalat is only a clerical error, the intention of the parties being quite clear, as is also seen from the fact that the petition was returned to Mr. M.S. Parthasarathi Aiyangar for subsequent correction. The view I have taken with regard to this point finds support in Ram Sarup V/s. Sahu Bhagwati Prasad (1936) I.L.R. 58 All. 912 and Baldeo V/s. Lachmi Narain . I therefore allow the petition.