1. The petitioner is the plaintiff in O.S. No. 828 of 1943 on the file of the District Munsif's Court, Trivellore. The suit was dismissed on 25th September 1944 for default of the appearance of the plaintiff. The plaintiff through his vakil Mr. M.S. Parthasarathi Aiyangar filed a petition under Order 9, Rule 9, Civil P.C., on 24th October 1944, within time, to have the suit restored to file; but in doing so, the vakalat on behalf of the vakil was defective. In the body of the vakalat, the name of Mr. T.E. Raghavachari was mentioned, but his name was not struck off and Mr. Parthasarathi Aiyangar entered; but Mr. Parthasarathi Aiyangar had endorsed on the vakalat accepting the same. The Court returned the vakalat and the petition on 81st October 1944 as the vakalat was defective and four days time was given for rectification. This was complied with and the petition and the vakalat were re-presented to Court on 4th November. The learned District Munsif dismissed the petition on the ground that the earlier presentation on 24th October 1944 was not a proper presentation of the petition and that by 4th November 1944 the petition was barred by limitation, as under the Limitation Act a statutory, right accrued to the respondent.
2. A preliminary objection was taken to this petition that no petition lies to this Court as an appeal lies from an order under Order 9, Rule 9 to the District Court. When a petition is filed under Order 9, Rule 9, Sub-section (2) of the rule provides that no order shall be made under the rule unless notice of the application has been served on the opposite party. Therefore, the order now sought to be revised, which admittedly was passed without notice, I cannot be considered to be one passed under Order 9, Rule 9. If it is an order under Order 9, Rule 9, it is to the District Court, and not to the High Court, that an appeal lies. Under Section 115, Civil P.C., the High Court can interfere in revision in all cases where no appeal lies directly to the High Court.
3. On the merits, I consider that the earlier presentation on 24th October is a proper filing within time, and the fact that the vakil's name was not entered in the body of the vakalat is only a clerical error, the intention of the parties being quite clear, as is also seen from the fact that the petition was returned to Mr. M.S. Parthasarathi Aiyangar for subsequent correction. The view I have taken with regard to this point finds support in Ram Sarup v. Sahu Bhagvati Prasad : AIR1936All636 and Baldeo v. Lachmi Narain ('34) 21 A.I.R. 1934 All. 810. I therefore allow the petition.
4. The District Munsif will have the petition restored to file and disposed of it on the merits according to law. The petitioner is allowed the costs of this petition.