M VENKATACHARIAR Vs. MOULVI MAHAMMAD FAIZUDEEN SAHIB BAHADUR BY AGENT MOULVI MANJOOR AHAMED SAHIB KUDDOOSI

JUDGEMENT

(1.) THE petitioner's suit was decreed ex parte and the respondent put in an application under Order 9, Rule 13, Civil P.C., to set aside the ex parte decree. A conditional order was passed setting aside the ex parte decree if the respondent deposited a certain sum of money within a prescribed time. THE condition was not fulfilled and so the petition was dismissed. No appeal was preferred against that order; but a petition was filed purporting to be under Order 9, Rule 9 and Section 151, Civil P.C., to restore the earlier petition which had been dismissed for non- fulfilment of the condition. THE District Munsif considered the application on its merits and came to the conclusion that the respondent did not show sufficient cause for re-opening the earlier application. He accordingly dismissed it. An appeal against this later order was preferred to the District Court, Chittoor. No question as to the maintainability of the appeal seems to have been raised and the learned District Judge came to the conclusion that the respondent had substantially complied with the condition and that the petition should have been granted.

(2.) IT has been held in Salar Beg. V/s. Kottayya ( 26) 13 A.I.R. 1926 and Venkatanarasimha Rao V/s. Suryanarayana ( 26) 13 A.I.R. 1926 Mad. 325, that when an application under Order Rule 9 is dismissed for default, another application to set aside that order would also be an application under Order 9, Rule 9 and would therefore lie. In the present case however the petition under Order 9, Rule 9 was not dismissed for default and I cannot see how any petition would lie to re-open the previous order. If a petition lies at all, it would presumably be a review petition and the Court would in that case have to confine itself to the situation as it was at the time it considered the first application. The appeal to set aside the order of the District Munsif dismissing the second petition was not competent as Order 43, Rule 1 makes no provision for an appeal under such circumstances. IT is next argued that the petitioner must be deemed to have waived the above objection by not raising it in the lower Court. The respondent filed a revision petition against the order of the District Munsif and that petition was withdrawn and dismissed when the District Judge allowed the appeal and restored the suit to file. The petitioner was not however responsible for the withdrawal of that petition and there can be no waiver with regard to jurisdiction. The mere fact that the petitioner did not object to the maintainability of the appeal does not make the order in the appeal valid, but the petitioner's failure to raise the objection below is a circumstance that can be taken into account in considering whether this Court should interfere in revision. Any inconvenience caused by the default of a party during the hearing of a suit is generally a matter for which the other side can be compensated by the awarding of costs; and as in the present case no substantial injustice was done to the petitioner, I do not fuel called upon to interfere with the order restoring the suit. In the result, the civil revision petition is dismissed; but there will be no order as to costs.