Deodip Singh v. Gopal Singh Opposite Party.

Sharfuddin, J.:— This was a Rule upon the opposite party to show cause why the orders complained of should not be set aside. The facts are these: There were eleven suits for mesne profits instituted by the plaintiff. It is contended that all these suits were analogous but no application was made to the trying Court that all these suits should be treated as analogous. It is said that from time to time these suits were postponed on the application sometime of one party and sometime of another, but only on one application not on eleven applications. On the date in question there was one application put in for postponement of the suits. That application was treated as an application in Suit No. 8, Suit No. 8 was postponed. With regard to the other suits, ten in number, the following order was passed by the Munsif:

“There is no pairvi on either side. The plaintiff's pleader says that he is going to apply for time. The defendant's pleader says that he is ready. It is 1-50 p.m No steps have been taken as yet the suit is dismissed for default.”

2. Then an application was made for a review of this order under O. 47, R. 1. The question now is as to whether in the circumstances detailed above O. 9, R. 9, is applicable or whether the plaintiff had any other remedy under O. 47, R. 1. I consider that O. 9, R. 9, has a special provision for special cases. That rule applies only to original cases and not to cases in appeal and it applies to cases where a suit has been dismissed for default. O. 47, R. 1, is a general law for review of judgments. The application for review of judgment was put in more than 30 days after the order dismissing the suit for default. O. 9, R. 9, restricts an application for restoration to be made within 30 days from the order of dismissal. If an order of dismissal like the one in the present case were to be allowed to be governed by the provisions of O. 47, R. 1, there would be no necessity for O. 9, R. 9, but when a special provision has been provided the parties litigating should have recourse to the special provision and not to the general provision. In the above circumstances I am not prepared to interfere with the order made and would therefore discharge the Rule with costs.

3. Roe, J.:— I agree. The case of Koilash Mondol v. Nabadwip Chandra Kar(1), is direct authority for the proposition that where a remedy is open under O. 9 by an application for an order to set aside the order dismissing the suit and where the dismissal of the suit has been passed in the presence of the parties the party in default should not be permitted to evade the rule of limitation by applying under O. 47, R. 1. The case of Raj Narain Purkait v. Ananga Mohan Bhandari(2) came before the Court in very peculiar circumstances. The plaintiff's suit had been dismissed in spite of the fact that there was a clear admission by the defendants in their written statement that there was in that suit some merit. The basis, upon which the application to review the order made dismissing the suit was admitted was not the consideration that the plaintiff had been prevented by proper cause from proceedings with the suit but that the order made in the first instance was obviously wrong. The Courts conceding that the order was obviously wrong were prepared in the special circumstances of the case to reopen the whole question of the rights of the parties.

4. I venture with very great respect to dissent from the extension of that principle to the general proposition laid down in Chet Narain Sahi v. Ram Pal Manjhi(3), that an application for review under O. 47 may be made an excuse for going into the question whether an order refusing to grant time for the production of further evidence was or was not a proper order and reviving the suit after the period of limitation for an application in proper form has lapsed.

5. The orders in the cases before us were passed in the presence of the parties and no explanation has been given to this Court for the failure of the plaintiff's legal advisers to make an application for restoration of the suits to the file within the period of limitation. I agree that the application for review was rightly rejected. I agree that the Rule be discharged with costs.

V.S/R.K

6. Rule discharged.