R.P Singh, J.:— This First Appeal From Order is against an order dated 12th May, 1987 passed by the Civil Judge, Gyanpur, Varanasi, rejecting the application moved by the appellant for setting aside the ex parte decree dated 13th January, 1987.
2. The brief facts of the case are that the plaintiff-respondent filed Original Suit No. 72 of 1986 against the defendant-appellant for recovery of Rs. 72,250/-. A written statement was filed by the appellants on 20-8-86. On 22-10-86, however, the suit was dismissed under O. 9, R. 3, CPC as neither party appeared when the suit was called for hearing. The same day, however, the plaintiff-respondent filed an application under O. 9, R. 4, CPC and the Civil Judge without issue of any notice to the appellants and relying on the affidavit filed by the plaintiff-respondent restored the suit to file on 22-12-86 and fixed 13-1-87 for hearing. On this date, i.e 13-1-87, the I defendants had no notice. The Court passed an ex parte decree decreeing the suit after accepting the ex parte evidence of the plaintiff. The grievance of the defendant-appellants is that after the dismissal of the suit of 22-10-86 under O. 9, R. 3 the defendants came to know the same day that the suit had been dismissed for default and thereafter they were not aware of any application for restoration being filed by the respondent or that any date having fixed for appearance of the parties for final disposal of the case. On 22nd April, 1987 the appellants made inquiries about the case when they came to know that the suit had been restored to its original number without any notice to them and also an ex parte decree was passed on 13th January, 1987 in favour of the respondent without issue of any notice to the appellants. Then, the appellants, the very next day i.e, on 23rd April, 1987 moved an application for setting aside the ex parte decree dated 13th January, 1987 explaining the reasons for the non-appearance on 13-1-87. The appellants had filed an affidavit saying that they had no knowledge whatsoever of the case until 22-4-87. The learned Civil Judge, however, holding that it was not necessary to send notices to the defendants of the date fixed for hearing i.e 13-1-87 after the application was allowed under O. 9, R. 4, CPC restoring the suit to its original number and hence the ex parte decree passed on 13-1-87 without any notice of the date to the appellants was validly passed and consequently dismissed the application filed by the appellants for setting aside the ex parte decree. The defendants feeling aggrieved, have come up in appeal against the said order dated 12-5-87 passed by the learned Civil Judge refusing to set aside the ex parte decree. The sole point for consideration in this case is whether the learned Civil Judge was right in holding that it was not necessary to serve notices on the defendants of the date of hearing of the case after restoration. The dismissal under O. 9, R. 3, CPC was in absence of both the parties. Thereafter when the application for restoration was made by the plaintiff under O. 9, R. 4, CPC, at that stage the defendants may not claim issue of notice to them as of right but when the Court restored the suit to file on 22-12-86 on the application filed by the plaintiff and fixed another date of hearing of the case, it does not stand to reason that the defendants should not be given the notices of the date of hearing of the date fixed in the suit. In fact, in absence of any notice being issued to the defendants of the date fixed in the case after restoration, they could have no means of knowledge about the date fixed in the case or that even the application for restoration had been allowed. When the defendant-appellants came to know on inquiry on 22-10-86 that the suit had been dismissed under O. 9, R. 3 for default, they could not anticipate when an application for restoration would be made and allowed. If such an application has been moved and allowed, it appears to be very inequitable that the defendants should not have notice of the date fixed for hearing. It has been held in the case of Mool Chand v. Ganga Sahai, AIR 1933 All 522 that when the plaintiff is allowed second chance by having the application for restoration granted, it appears to be very inequitable that the defendants should not have any notice of the date fixed for hearing and that the defendant is, as of right entitled to notice of hearing of the suit. The same view has been taken in Ramchandra Ramaji Khatik v. Sahadeo, AIR 1945 Nag 185 that it is but equitable to hold that the Court should fix the case for hearing the parties and give notice of hearing to the other side and that it does not stand to reason that even after the court restores a suit to its original number and fixes another date of hearing, the defendant should not be given notice of the hearing of the suit. We are in respectful agreement with the view taken in the cases referred to above.
3. The learned counsel for the respondent has placed reliance on a case Babu v. L. Dewan Singh, AIR 1952 All 749 where it has been held that where a suit is dismissed under O. 9, R. 3 and is restored under R. 4, the latter Rule does not lay down that before the suit is restored a notice should be given to the defendant and the Court commits no illegality in giving no notice to the defendant of the date fixed for recording ex parte evidence. With great respect, we feel that the view taken in Babu v. L. Dewan Singh (supra) is too technical view as this view in some cases may result in passing a decree against the defendant behind his back without being afforded any opportunity of hearing to him. It is not conceivable that after the application for restoration moved by the plaintiff was allowed under O. 9, R. 4 CPC and the Court fixed another date for hearing the defendant could not possibly come to know of the date fixed by the Court for hearing unless he was given notice of the date fixed in the case. This would practically amount to passing of a decree against a party without giving him any opportunity of hearing which is against all Canons of justice and equity.
4. The learned counsel for the respondent has also urged that the application given by the defendant-appellants on 23-4-87 was headed to be under S. 151 CPC and hence no appeal lay against such an order. It is clear that the prayer made in the application moved by the defendants on 23-4-87 was for setting aside the ex parte decree dated 13-1-87 and for moving such an application the proper procedure provided in the CPC is given under O. 9, R. 13 CPC and if by mistake the appellants have given the heading as S. 151 CPC, that would not change the nature of the application which is clearly in the nature of an application under O. 9, R. 13 CPC for setting aside the ex parte decree. A First Appeal From Order lies in this Court against an order refusing to set aside an ex parte decree, and hence the present appeal has been competently filed before this Court.
5. A perusal of the order passed by the learned Civil Judge shows that even though he has found that no notice of the date fixed for hearing was given to the appellants but since no such provision was shown to him under which the defendant was entitled to a notice of the date fixed in the case and hence on this ground the application for setting aside the ex parte decree has been rejected. In the circumstances when the fact is admitted that no notice of the date of hearing was given to the appellants after the suit was restored to its original number in our opinion, the defendants had shown sufficient cause for their being prevented from appearing when the suit was called for hearing on 13-1-87. As we have said above, when the application for restoration was allowed, it was but equitable to hold that the Court should have fixed the case for hearing after giving notice of hearing to the defendant-appellants. We, therefore, hold that the defendants did not have knowledge of the proceedings on 13th January, 1987 when the ex parte decree was passed against them.
6. In the result, we allow the appeal and set aside the order of the learned Civil Judge dated 12th May, 1987.
7. The ex parte decree dated 13-1-87 is accordingly set aside and the suit shall proceed after serving a proper notice of the next date fixed in the case to the parties in accordance with law.
8. In the circumstances of the case, however, we make no order as to costs.
9. Appeal allowed.