SARAT KRISHNA BOSE Vs. BISWESWAR MITRA

JUDGEMENT

(1.) The petitioner had instituted a suit in the first Court of the Subordinate Judge of Faridpur on the 9 August 1924 for setting aside a revenue sale in respect of a certain taluk. The suit was dismissed for default, as the petitioner did not, or, as he says, was unable to, appear on the 5 August 1925. On the 4 September 1925 he applied under Order 9, Rule 9, Civil P.C., for restoration of the suit. The Subordinate Judge ordered this application to be registered and ordered the petitioner to file talabana and processes on or before the 10 September 1925. This order was not complied with. On the 10 September 1925 the case being put up, an application was made on the petitioner's behalf praying for a reasonable time to enable the petitioner's pleader to communicate with the petitioner who, it was said, was away at a distant place. The Subordinate Judge granted time by the following order : "On the prayer of the applicant time allowed till 12/9 next for filing talabana and processes." On the 12 September 1925 the application under Order 9, Rule 9, Civil P.C., was dismissed for default as talabana and processes were not filed. On the 20 October 1925 another application was filed by the petitioner under Order 9, Rule 9 for the setting aside of the aforesaid order of dismissal and for restoration of the aforesaid application under Order 9, Rule 9, Civil P.C. This application was dismissed by the Subordinate Judge on the 15 December 1925, he having held that such an application did not lie. The material portion of his order runs as follows: He (meaning the petitioner) now applies for an order to act aside the order dismissing his application under Order 9, Rule 4 for default. In my opinion Order 9 does not apply in this case. The Miscellaneous proceedings to which Section 141 applies are matters such as applications foe probate, Certificate of guardianship etc., which, when contested, partake of the nature of suits, and not miscellaneous cases of this description. I, therefore, reject this application.

(2.) It is the validity of this order which is in controvery in this Rule.

(3.) The contention of the petitioner is that by virtue of the provision contained in Section 141, Civil P.C. Order 9 is applicable to all miscellaneous proceedings including a proceeding under Order 9 and when his application under Order 9, Rule 9 far restoration of the suit was dismissed for default under Rule 4 of that order, an application lay under Order 9, Rule 9 for setting aside that order of dismissal and for restoration and re-hearing of the former application under Order 9, Rule 9. The authority which directly supports the petitioner's contention is the decision of this Court in the case of Bepin Behary Shaha V/s. Abdul Barik [1916] 44 Cal. 950, The learned Judges who decided that case relied upon the reason of the Rule in Diljan Nichha Bibi V/s. Hemanta Roy [1915] 19 C.W.N. 758, in which an application for setting aside a sale under Order 21, Rule 90, Civil P.C., had been dismissed for default and it was held that Order 9 was applicable for setting aside that order of dismissal. They proceeded to observe as follows: In this case also, in a similar way, the application for restoration of the case under Order 9, Rules 4 and 9 may be treated as an original application although no fresh parties are interested in the case. The proceeding in initiated by an application which has to be numbered as a separate miscellaneous case and decided upon evidence.