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BepIn Behari Saha Vs. Abdul Barik and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.613
AppellantBepIn Behari Saha
RespondentAbdul Barik and ors.
Cases ReferredDiljan Mihha Bibi v. Hemanta Kumar Roy
Excerpt:
civil procedure code (act v of 1908), order ix, rules 4, 9 - application for restoration of application under rules 4, 9 dismissed for default--provincial small, cause courts act (ix of 1887), section 17, applicability of. - .....there was again an application made under order ix, rule 9, for the re-hearing of the case. the learned munsif held that order ix, rule 9, did not apply and, therefore, dismissed the application.2. it appears that the plaintiff made an application also for treating it as an application for review. on that application also, the learned judge said such application does not lie.' we are unable to see the justification of such orders.3. in the first place, we do not think that order ix, rule 9, does not apply; and in arriving at this conclusion, we follow the case of diljan mihha bibi v. hemanta kumar roy 29 ind. cas. 395 : 19 c.w.n. 758. there it was held that order ix, rule 9, was applicable to a case in which an application for setting aside a sale had been dismissed. the application.....
Judgment:

1. The plaintiff brought a suit in the Small Cause Court. The suit was dismissed for the plaintiff's default in the presence of the defendant. The plaintiff then made an application under Order IX, Rules 4 and 9, for restoration and re-hearing of the case. On this occasion also there was a default and then the order dismissing this case was made in the presence of the defendant's Pleader. There was again an application made under Order IX, Rule 9, for the re-hearing of the case. The learned Munsif held that Order IX, Rule 9, did not apply and, therefore, dismissed the application.

2. It appears that the plaintiff made an application also for treating it as an application for review. On that application also, the learned Judge said such application does not lie.' We are unable to see the justification of such orders.

3. In the first place, we do not think that Order IX, Rule 9, does not apply; and in arriving at this conclusion, we follow the case of Diljan Mihha Bibi v. Hemanta Kumar Roy 29 Ind. Cas. 395 : 19 C.W.N. 758. There it was held that Order IX, Rule 9, was applicable to a case in which an application for setting aside a sale had been dismissed. The application for setting aside the sale was treated there as an original proceeding. In this case also, in a similar way, the application for the restoration of the case, under Order IX, Rules 4 and 9, may be treated as an original application although no fresh parties are interested in the case' The proceeding is initiated by an application which has to be numbered as a separate miscellaneous case and decided upon evidence.

4. In this view of the case, we think that the learned Munsif ought to have considered the application on the merits.

5. Then, as regards the alternative prayer for treating the application as an application for review, we do not understand why the learned Munsif says that Order XLVII, Rule 1, has no application. That rule seems to apply to all orders of the Court which may be reviewed under certain circumstances.

6. The objection, taken by the opposite party was that there was no deposit under Section 17 of the Small Cause Courts Act. Section 17 of the Small Cause Courts Act, however, speaks of deposits where there has been an application for review of judgment in cases where an ex parte decree has been passed; or a review of judgment evidently in cases where there has been a judgment deciding the case. We do not think that the provisions of Section 17 with regard to deposit of security have any application to a miscellaneous application of this kind. If they had any application, the learned Judge might have asked the petitioner to give security or to deposit the amount instead of saying that the application does not lie.

7. In this view of the case, we make the Rule absolute and direct that the application should be decided on the merits.

8. We make no order as to costs.


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