Bepin Behari Sara v. Abdul Barik

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 Or. 9, rr. 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 Or. 9, r. 9, for the re-hearing of the case. The learned Munsif held that Or. 9, r. 9, did not apply, and therefore dismissed the application.

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.

In the first place) we do not think that Or. 9, r, 9, does not apply; and in arriving at this conclusion, we follow the case of Deljan Nichha Bibee v. Hemant Kumar Ray. There it was held that Or. 9 r. 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 Or. 9, rr. 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.

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

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 Or. 47, r. 1 has no application. That rule seems to apply to all orders of the Court which may be reviewed under certain circumstances.

The objection taken by the Opposite Party was that there was no deposit under sec. 17 of the Small Cause Courts Act. Sec. 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; of a review of judgment evidently in cases where there has been a judgment deciding the case. We do not think that the provisions of sec. 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.

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

We made no order as to costs.

J.N.R

Rule made absolute.