1. This is a defendant's application in revision against the order by the District Judge, Jubbulpore, in Miscellaneous Civil Appeal No. 14 of 1936 passed on 22nd December 1936. Civil Suit No. 5-A of 1935 on the file of the Second Sub-Judge, Second Class, Jubbulpore, was dismissed for default of the plaintiff on 4th February 1936.
2. His counsel applied on 5th February 1936 for its being restored to file on the plea that he had noted a wrong date in his diary and did not appear in the case due to a misunderstanding that it was not fixed for hearing on that date. The trial Court declined to restore it remarking that the application made by the plaintiff's counsel was an irregularity. The lower Appellate Court took a different view and remanded the proceeding to the original Court for enquiry into the merits. It is urged on behalf of the defendant that in view of the provisions of O. 3, R. 4(2) and (3) it was not permissible for a pleader to apply under O. 9, R. 13 of the CPC, for restoration of a suit which was dismissed for default. Sub-r. 3 of R. 4 of O. 3 of the CPC, specifies certain proceedings wherein the appointment of a pleader shall be deemed to be in force. That sub-rule does not impose any restraint on the generality of the meaning of the expression “all proceedings in the suit” occurring at the end of sub-r. 2 of R. 4, and cannot be regarded as exhaustive. The maxim expressio uniusest exclusio alterius cannot be applied in the interpretation of the terms of sub-r. 3 of R. 4, as R. 1 of O. 3 authorizes a pleader to make any application on behalf of the party he represents. As a suit terminates only by a decree, an application for restoration of a suit dismissed for default must be regarded as a proceeding in the suit. Consequently, a pleader is entitled to present such an application without fresh appointment: see, AIR 1929 Lah 96.1 I therefore agree with the view taken by the lower Appellate Court. It is contended that the allegation made in the application was vague and evasive. That is a matter which relates to the merits, for enquiry into which the case was remitted by the lower Appellate Court. The application is dismissed with costs. Pleader's fee Rs. 10.
V.B.B/R.K
3. Application dismissed.