UMA DATT UPADHYA Vs. MTZAKIA BIBI

JUDGEMENT

(1.) This application in revision raises an interesting question of law. The defendant is the applicant before us, and the facts are that the plaintiff's suit was dismissed for default of appearance on 1 August 1933. On 28 August 1933, the plaintiff applied for restoration of the suit. This application for restoration came for hearing on 19 May 1934. It appears that the plaintiff had not deposited process-fee for the opposite party till 12 May 1934, on which date the process- fee was tendered. The learned Munsif however refused to accept the process-fee and observed that there was no sufficient time left for the service of the notice in the ordinary course on the unserved opposite party. The result was that when the application for restoration came for hearing on 19 May 1934, the learned Munsif passed the following order: Notice could not be issued to upon (sic) opposite party 8 on account of the applicant's paying process-fee etc., as late as 12 May 1934. The application is dismissed for non-prosecution with costs to the contesting opposite parties.

(2.) This order makes it clear that several of the opposite parties were served and were present on 19 May 1934, but one of them, namely No. 8, could not be served, because the learned Munsif refused to take the process-fee which was tendered late, namely on 12 March 1934. It might be mentioned that the plaintiff-applicant, before the learned Munsif, was prepared to take the risk of late deposit of process-fee and prayed that if dasti summons were handed to him, he would serve opposite party 8 himself, but even that request was not granted. Against the order of the learned Munsif, dated 19 May 1934, the plaintiff appealed to the learned District Judge and there a preliminary objection was taken that no appeal lay to that Court. The learned District Judge overruled the preliminary objection and on the merits came to the conclusion that the order of the learned Munsif was unjustifiable and harsh, and he therefore set it aside, and allowing the appeal directed that: The plaintiff's application for the re-opening of the case dismissed for default should be restored to its original number on the file of pending cases and disposed of according to law.

(3.) The defendant has come to this Court in revision and reiterates the contention that no appeal lay to the learned District Judge. We are of opinion that there is no force in this contention for the reasons to be given by us presently. Under Order 43, Rule 1, Clause (c), Civil P.C., an order under Rule 9, Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit is appealable, and whereas the contention of the plaintiff opposite party is that the order of the learned Munsif dated 19 May 1934, was an order under Rule 9, Order 9, the contention of the defendant-applicant is that it was an order under Rule 2, Order 9. Now Order 9, Rule 2 does not in terms apply to an application for restoration. It applies where a suit has been dismissed for failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service. Before, therefore, the defendant's contention can be upheld, we must be satisfied that the order of the learned Munsif was under Rule 2, and for that purpose the defendant asks us to invoke in aid the provisions of Section 141, Civil P.C. Now that section reads as follows: The procedure provided in this Court in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.