1. This is an application in revision against an order made by the Full Court of the Court of Small Causes, Bombay, under Section 38 of the Presidency Small Cause Courts Act, 1882, hereinafter referred to as 'the Act'.
2. The respondent brought a suit against the applicant to recover money in the Small Causes Court, Bombay. In that suit, the applicant appeared and filed certain defences. The suit was ultimately fixed for hearing on 7th September 1970. On that date, when the suit was called out, the respondent was absent and, therefore, the suit was dismissed for default. The respondent subsequently filed an application for setting aside the dismissal of the suit for his default. Rule was issued to the applicant and after hearing the parties, the trial Court discharged the notice, thus refusing to set aside the dismissal of the suit for default of the respondent. The respondent thereupon filed an application under Section 38 of the Act to the Full Court of the Court of Small Causes which set aside the order of the trial Court and restored the suit of the respondent to file. It is this order which is being challenged in this revision application.
3. Section 38 of the Act is in these words:--
'38. New trial of contested cases.--Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit (not being a decree passed under Section 522 of the Code of Civil Procedure) (XIV of 1882), order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.
Explanation-- Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant.'
4. Mr. Rane appearing for the applicant has questioned the jurisdiction of the Full Court of the Court of Small Causes to entertain and proceed with the application under Section 38 of the Act. As before the Full Court, the main ground urged in support of the above contention is that for the applicability of Section 38, what is required is that the suit should have been contested. This, however, could not be a suit that had been contested, because the suit had been dismissed for default of the plaintiff-respondent As rightly pointed out by the Full Court, the defendant-applicant had not only put in her appearance but she had also filed certain defences and, therefore, it was a suit that had been contested. Mr. Rane has not been able to point out any authority taking the, notary view. The only authority referred to by him is the decision in Ananta Coomari Dassi v. Radharani Dassi (1906) 3 Cal LJ 199. That case is clearly distinguishable because there the defendant had not at all appeared and the suit was decreed ex parte. It could not, therefore, be a suit which had been contested. In fact, the Explanation to Section 38 makes it clear that where a decree is made in default of the defendant's appearance, it cannot be deemed to be a contested suit.
5. Although the above was the only ground urged before the Full Court, Mr. Rane has urged a few more points in support of his contention that the Full Court had no jurisdiction under Section 38 of the Act to entertain and proceed with the application. Mr. Rane does not dispute that Section 38 can be reported to not only against a decree but even against an order. But his contention is that if the application is made against an order, that order must have the force of a decree and secondly, that order must have been made in the suit. According to him, the order against which the application was made had neither the force of a decree, nor could it be said that the order was made in the suit, inasmuch as it was made in the application to set aside the dismissal of the suit- So far as the first point is concerned, he relies upon the decision in Chinnathambai v. Veerabadriah Naidoo ilr(1903) Mild 163, In that case, the Court had dismissed the suit in default of the plaintiff's appearance and on an application by the plaintiff to set aside the dismissal of the suit and to restore the suit to file, the Court had set aside the dismissal of the suit and restored the suit to file. The effect of this was that there was no final termination of the suit as the suit had been revived and, therefore, the order setting aside the dismissal of the suit and restoring it to file could not be an order having the force of a decree but was only an interlocutory order. This is made quite clear in the judgment of Benson J. at page 165 of the Report. In the present case, the effect of the order of the trial Court refusing to set aside the dismissal of the suit and to restore it to file was to terminate the suit finally, inasmuch as the earlier order of the dismissal of the suit stood and such an order naturally had the force of a decree. It is, therefore, not possible to accept the first part of the argument of Mr. Rane.
6. On the second part of tile argument, Mr. Rane has not cited any direct authority but has only relied upon the wording of Section 38 which says that the application can be made within eight days from 'the date -of the decree or order in the suit'. I do not think that such a restricted interpretation could be placed on the word 'suit' in Section 38 as not to cover the application made |to set aside the dismissal of the suit for default of the plaintiff and to restore it to file. Mr. Rane has relied upon the decision in Kanji v. Jivaraj, : AIR1930Bom412 , where a question arose whether the order against which an application under S- 38 of the Act had been made could he said to be an order in the suit. In that case, an ex parte decree was passed in the Court of Small Causes at Bombay against a certain firm, when Kanji Vishram, a partner in the firm, was not served as a partner. The decree-holder got a notice issued to Kanji Vishram under Order XXI, R. 50, Sub-rule (2) of the Civil Procedure Code to show causa why his name should not be brought on record as a partner in the firm of Kanji Khimji and Co. and execution issued against him. After considering the objections of Kanji Vishram, the trial Court ordered that Kanji's name be brought on record and the decree executed against him. Kanji Vishram filed an application under Section 38 of the Act to the Full Court. That Court held chat it had no jurisdiction to entertain and proceed with such an application. The matter was taken to the High Court and the Division Bench of this Court agreed with the view of the Full Court that it had no jurisdiction to entertain and proceed with the application. The question of jurisdiction depended upon whether a proceeding in which leave is applied for to execute a decree, under O. XXI, R. 50, Sub-rule (2), was a suit. The High Court held that such a proceeding is in the nature of a subsidiary application after the decree is passed and before the decree can be executed against the partner against whom the application is made under O. XXI, R, 50, Sub-rule (2). I do not think that an analogy of this view can be applied to the facts of the present case to hold that an application filed, after the dismissal of the suit for default of the plaintiff, to have the dismissal set aside and the suit restored to file, cannot be in a suit within the meaning of Section 38 of the Act.
7. In support of his contention that the Full Court had no jurisdiction to entertain and proceed with the application under Section 38, Mr. Rane finally relied upon a decision in Fire Stone Tyre and Rubber Co. v. Ramanuja, : AIR1951Mad672 . But the question decided there was totally different. In that case, the Full Bench of the Small Cause Court had dismissed an application, for default of appearance, made to it under Section 38 of the Act for a new trial. An application was made to that Court to set aside the order of dismissal of that application for default and the question that arose for consideration was whether the Full Bench of the Small Cause Court could entertain such an application. The question that arose for decision in that case was thus totally different.
8. These were the only submissions mada by Mr. Raoe. As they have all been rejected, the application in revision fails and is ad-missed. The Rule is discharged. There will be no order as to costs, as there is no appearance on behalf of the respondent.
9. Application dismissed.