1. This is a petn. by defts. 4 to 11 for revising an order passed by Munaif of Cuttack restoring a suit which had been dismissed under Order 9, Rule 8, C. P. C. The suit was one for specific performance of contract of lease of some waste lands as well as Nijchas lands. The contract had been entered into by defts. 1 to 2, who admittedly are the proprietors. The contract is said to have been entered into on different dates (29-9-44 & 6-2-45) in respect of wastelands & Nijchas lands respectively. The defts. l & 2, however, executed a registered permanent lease in respect of the very same lands in favour of deft. 8 on 4-8-45 The latter about two years after his lease sold his lease-hold interest to defts. 4 to 12 of whom defts 4 to 11 are the petnrs. before us. Admittedly, defts, 4 to 12 were actively contesting the suit. The position in relation to the other defts. is that defts. l to 2 filed & written statement alleging that as the pltf. had failed to pay the promised consideration, they were at liberty to grant the subsequent lease in favour of deft. 3. The deft. 3 filed a written statement opposing the pltfs.' case & asserting the validity of his lease free from equity in favour of any contract alleged by the pltfs. & his right to transfer to the defts. 4 to 12. The clefts. 1 to 3 did not consider it necessary to take any further steps in support of their defence & what course they were likely to take at the hearing of the suit is difficult to speculate. One thing, however, is certain that the Ct. never considered that these defts. had withdrawn from the contest. It appears to be so from the fact, as it is conceded at the Bar, that the Ct. never set down the suit as ex parte against those defts. In law, therefore, anyone of them or all could come & appear at any time in course of the hearing & contest the suit. They might or might not have the necessity for summoning any witnesses or producing any documents. On the date of hearing the pltfs. as well as defts. 4 to 12 filed petns. for adjournments. The Ct. rejected the prayers of both & called upon them to take further steps in the suit. Following this order, defts. 4 to 11 intimated their readiness to go on with their defence & filed Hazira of their witnesses. The pltfs., however, did not take any further steps. Under the circumstances, the Munsif dismissed the suit under Order 9, Rule 8, C.P.C. Then followed an appln. under Order 9, Rule 9 for restoration of the suit to its orginal file. This petition was registered as Misc. case. no. 24/48. On a date later than it was registered, the 2nd Addl. Munsif, Cuttack, passed this queer & unusual order :
'Requisites filed. Issue notice on the contesting Opp. Parties 4 to 11 fixing 27-4-48 for return.'
Overriding the earlier order to issue notice to all opposite parties. According to this order, notices of the petn. for restoration were issued .& served upon defts. 4 to 11. Accordingly, no notices were issued to defts. 1, 2, 8 & 13. The petn. therefore, was heard in presence of those defts. only & was allowed. As against this, the present revn. has been filed.
2. The contention of Mr. Mohanti, the learned counsel for the petnrs., is that the proceeding is illegal & the order invalid, in as much as, as required under Order 9, Rule 9(2), that no such order of restoration can be made until notices of the appln. had been served on all the opposite parties. Prom the petn. for restoration it appears that all the defts. in the suit had been arraigned as opposite parties. It is difficult to understand how could the learned Munsif at that stage discriminate some of the opposite parties as against the others on the ground that same were contesting & others not. It appears that 4Ms Order no. 44 dated 6-4-48 in Misc. Case. No. 24/48, is to the order of the pltfs. but not as required by law we take a serious notice of this sort of order which implies nothing but slackness & negligence on the part of the Presiding Officer as welt as of the Bench Clerk concerned.
3. We have now to consider whether this omission invalidates the order. Mr. Misra, appearing for the opposite parties, has invited our attention to two decisions, one of Allahabad H. C. & the other of Bombay H. C., in support of his contention that the order was partly under Order 9, Rule 3 & partly under Order 9, Rule 8 according as it was against non-appearing defts. & the appearing ones. Those oases do, no doubt, spilt the order in that fashion. The references are Makundi Singh v. Prabhu Dayal, A. I. R. (13) 1926 ALL. 169 : (48 ALL. 97) and Damu Diga v. Vakrya Nathu, A.I.R. (7) 1920 Bom. 54 : (44 Bom. 767). Those oases, however, do not relate to a proceeding for restoration of the dismissed suit but concern with right to fresh suit on the same cause of action against those defts who did not appear on the date of hearing of the previous suit. As the point as was considered by their Lordships, is not before us, I should reserve my opinion with regard to the correctness of these decisions with great respect for an occasion when it arises.
4. So far as the present order is concerned, it is clear, however, that there is nothing to show that defts. 1, 2, 8 & 12 did not appear on the date fixed. It is conceded by Mr. Misra frankly enough that very rightly as it appears from the materials that defts. 1, 2, 3 & 12 were not called out by the Ct. at the time when the suit was taken up for hearing. In these circumstances, it is difficult to say that they did not appear. Besides the statement of Mr. Misra we do not find anything on record to show that these defts. had been called upon & that either they did not respond or refused to take any steps in the case or anything of the kind. Appearance does not mean physical appearance by the defts. themselves or their pleader. If appearance had any meaning it is this that the party concerned must be in readiness to see to the progress of the suit or the defence in such a manner as he thinks beat in his own interest. The defts. may have nothing further to do according to their particular line of defence until the actual hearing of the suit begins, which in fact, had never begun. As I have already said that to the knowledge of the Ct. these defts. had never been set down ex parte. Under the circumstanaes & on the facts it is not clear that the order of dismissal as against these defts. can be taken to be one under Order 9, Rule 8. Conceding that this order was against them as one under Order 9, Rule 3, the pltfs. must make it clear whether they want to have the order of restoration effectively passed against them. That they do so want appears from their own petn. in which they implead them as opposite parties. If the suit had not been set down ex parte against them & if they were going to be bound by the order of restoration that had been passed, I do not understand how any order affecting them could be passed in their absence. Some support is prayed in aid from the absence of a provision in the terms or the like of sub-r (2) of R. 9 of the Order from R. 4. But that does not necessarily mean that in any default under Order 9, Rule 3 restoration can be had in the absence of the opposite parties. There may be a case in which deft, has not at all appeared or having appeared has not filed any defence. In such cases it is quite possible that the Ct in its discretion, may say that no notice is necessary to be served upon him in the matter of restoration, as he must be served again after the suit is restored to its file. But what about the case in which the deft, had entered into contest, & had put the pltf. to proof of his case? In these oases certainly the dismissal of the pltf's suit, be it under whatever provision of the Code, gives rise to a valuable right in his favour It is difficult to conceive that they can be deprived of that right without being heard. It may be said even without restoration the pltf. has a right to fresh suit on the same cause of action. It may be so, but that does not answer the deft's cause. It may be for the purpose of a fresh suit lot of moneys is necessary by way of payment of court fees and the pltf. may not be able to institute a fre3b suit. There is always many a slip between cup & lip. Under the circumstances, the right to prevent restoration of the suit is no doubt a valuable right.
5. In the circumstances, it is clear that the order under revn. has been passed in contravention of Order 9, Rule 9 (2) of the Code & cannot be maintained.
6. In the result, the civil revn. is allowed with costs. Hearing fee is assessed at one gold mohur.
7. Under the circumstances, the pstn. for restoration should be reheard after notice to all the defts.
8. I agree.