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Suit Dismissed in Default.

Mst. Nurnahar Bewa And Anr. vs Rabindra Nath Dev And Ors. on 12 May, 1988
Equivalent citations: AIR 1988 Cal 358, (1988) 2 CALLT 32 HC, 92 CWN 1110
Author: G Ray
Bench: G Ray, N Mitra, K Yusuf

JUDGMENT

G.N. Ray, J.

1. This Revisional Application has been referred to a larger Bench by a Division Bench presided over by Mr. Justice Anil Kumar Sen (as his Lordship then was) for consideration by the larger Bench the two points raised by their Lordships in the Division Bench : –

(1) Whether by invoking the provision of Section 141 of the Code, an application under Order 9, Rule 4 or Order 9, Rule 9 of the Code can be made for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 of Order 9 of the Code?

(2) When such an application is maintainable, what would be the limitation for such an application?

2. The revisional application was made under Section 115 of the Civil P.C. by the petitioner Mst. Nurnahar Bewa and another against Rabindra Nath Deb and others, inter alia, challenging Order No. 40 dt. 9th July, 1982 passed by the learned Subordinate Judge, 2nd Court, Alipore in Miscellaneous Case No. 55 of 1982.

3. The short fact relevant for appreciating the points involved in this Special Bench Reference case may he stated as follows : –

Title Suit No. 22 of 1980 was instituted by the opposite party No. 1 against the petitioners being the defendants in the said suit for specific performance of a contract. The said suit was decreed ex pane and the balance of the consideration money was deposited by the plaintiffs in the said suit in court within two months from the date of the decree and the said decree was put in execution in Title Execution Case No. 23 of 1980 for obtaining possession of the premises in question, The deed of conveyance was made, executed and registered in January, 1981. The defendants viz. the petitioners in this revisional application made an application under Order 9, Rule 13, read with S, 151 of the Civil P.C. for recalling the said ex parte decree. On such application. Misc. Case No. 4 of 1981 was started. The said Misc, Case was also dismissed for default on 24th Sept., 1981 and on Nov. 21, 1981, an application under Order 9, Rule 4, read with Section 141 of the Civil P.C. and also under Section 5 of the Limitation Act was made by the defendant petitioners for recalling the said order of dismissal dt. 24th Sept., 1981 passed in Misc. Case No. 4 of 1981. On such application, Misc. Case No. 55 of 1981 was started. The learned Munsif dismissed the said application for recalling the order of dismissal of Misc. Case No. 4 of 1981 for default on the finding that the said application for restoration under Order 9, Rule 4 read with Section 141 of the Civil P.C. was barred by limitation and the petitioners failed to prove any sufficient cause for which the delay should be condoned in presenting the application beyond the period of limitation.

4. At the hearing of the revisional application before the Division Bench of this Court, it was contended on behalf of the petitioners that the said application under Order 9, Rule 4 read with Section 141 of the Civil P.C. was not barred by limitation but such application could be presented under the residuary article of the Limitation Act viz. Art. 137 but by way of abundant caution a prayer for condonation of delay was made by the petitioner. It was also contended on behalf of the petitioners that when a Misc. Case arising out of an application under Order 9, Rule 13 of the Civil P.C. is dismissed for default, an application under Order 9, Rule 4, read with Section 141 of the Civil P.C. is maintainable and the learned Subordinate Judge should have considered the said application for restoration on merits and should have disposed of the same on such consideration. It was, however, contended on behalf of the opposite parties that when the Misc. Case arising out of an application under Order 9. Rule 13 of the Civil P.C. is dismissed for default, no further application under O, 9. Rule 4 is maintainable and Section 141 of the Civil P.C. is not attracted because Section 141 of the Civil P.C. attracts only provisions relating to procedural matters in a civil proceeding but does not apply to any substantive right. The Division Bench has noted that judicial decisions on the point as to whether or not an application under Order 9, Rule 4, read with Section 141 of the Civil P.C. is maintainable against an order dismissing an application under Order 9, are not uniform and contradictory views have been taken by law courts. The Division Bench has further noted that two Bench decisions of this Court have supported the view that an application under Order 9. Rule 9 is maintainable for restoration of an application under Order 9. Rule 9 or 13 if such application is itself dismissed for default, but such decisions have not taken into consideration the question as to whether or not provisions of Order 9, Rules 4. 9 or 13 of the Code relate to procedure or substantive right. The Division Bench was of the view that the period of limitation for making an application under Order 9. Rule 3 or 13 for restoration of an application made under Order 9 dismissed for default requires a decision and such question is of importance. Hence, reference to a larger Bench was made by the Division Bench on the aforesaid two points and this Special Bench has been constituted by the Chief Justice for considering the aforesaid points referred to the larger Bench.

5. Mr. Bhattacharya, the learned counsel appearing in support of this Revisional Application has contended that there were conflicting decisions of this Court on the question as to whether or not an application under Order 9, Rule 9 of the Code lies for restoration of an application under Rr. 4, 9 or 13 of Order 9 since dismissed for default. In Bipin Behari Sah v. Abdul Barik, reported in ILR 44 Cal 950 : 21 Cal WN 30 : 24 Cal LJ 446, AIR 1917 Cal 548 (1). a Division Bench of this Court has held that when an application for restoration of a Small Cause Court suit dismissed for default is itself dismissed for default.anapplicationunderO. 9,R. 9ofthe Code for revival of that application lies under the provisions of Section 141 of the Civil P.C. But in the decision made in the case of Sarat Krishna Bose v. Bisweswar Mitra, reported in ILR 54 Cal 405 : AIR 1927 Cal 534 : 31 Cal WN 576, another Division Bench of this Court has held that when an application under Order 9. Rule 9 of the Code for restoration of a suit dismissed for default has itself been dismissed for default, a second application under Order 9, Rule 9 for restoration of the first application does not lie. The Division Bench has further held in the said decision that miscellaneous proceedings to which Section 141 is applicable do not include proceedings under Order 9. The Division Bench in coming to the decision relied upon a decision of the Privy Council made in Thakur Prosad v. Fakirullah, (reported in (1895) 22 Ind App 44) wherein it was held by the Privy Council that Section 141 applied only to “original matters in the nature of suits, such as proceedings — in Probate, Guardianships and so forth” and the expression “so forth” must be read as meaning proceedings “ejusdem generis” and does not include matters which arise from a suit or similar other proceedings. It also appears that another Division Bench of this Court in the case of Sourendra Nath Mitter v. Jatindra Nath Ghosh, reported in 32 Cal WN 811 : (AIR 1929 Cal 17) followed the decision made in the case of Sarat Krishna Bose (supra) and held that when an application under Order 9, Rule 9 for restoration of a suit dismissed for default it itself dismissed for default an application under Order 9, Rule 9 does not lie but the Court may set aside the order under Section 151 of Civil P.C. in a proper case. Mr. Bhattacharya has placed some decisions of the other High Court wherein the views taken in Sarat Krishna’s case were followed. In this contention, reference may be made to the decisions of the Patna High Court , of the Orissa High Court

, of the Madhya Pradesh High Court

, of the Nagpur High Court reported in AIR

1932 Nag 101 and of the Bombay High Court . Mr. Bhattacharya has also drawn our attention to the contrary decisions made by some other High Courts and we may refer to the decisions of the Madras High Court reported in AIR 1926 Mad 325 and AIR 1926 Mad 654, of the Lahore High Court reported in AIR 1920 Lah 304 and of the Andhra Pradesh High Court reported in AIR 1966 Andh Pra 263. Mr. Bhattacharya has, however, submitted that in the meantime, the Supreme Court in the case of Ram Chandra v. State of U.P., () has taken a view contrary to the view expressed by the Privy Council in Thakur Prasad’s case (supra). The question canvassed before the Supreme Court in Ram Chandra’s case was whether a proceeding before a Civil Court arising out of a reference under Section 146(1) of the Criminal P.C. is a civil proceeding as contemplated by Section 141 of the Code. In dealing with that question, the Supreme Court observed that the expression “civil proceedings’ in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of guardian etc. but it applies also to proceedings which are not original proceedings. Mr. Bhattacharya has, therefore, submitted that the decision of the Division Bench of this Court made in Sarat Krishna’s case (supra) and also followed in Sourindra Nath Mitter’s case (supra) drawing inspiration from the decision of the Privy Council in Thakur Prosad’s case, therefore, does not appear to be correct. Mr. Bhattacharya has submitted that the Punjab and Haryana High Court in a case reported in AIR 1978 Punj and Har 257 and Madhya Pradesh High Court in a case (Full Bench) held that an application

under Order 9, Rule 9 lies for restoration of a previous application under Order 9, Rule 9 which was dismissed lor default and the proceeding under Order 9 is a civil proceeding within the meaning of Section 141 of the Code. Mr. Bhattacharya has submitted that the aforesaid conflict as to whether or not a proceeding under Order 9 is a civil proceeding has now been set at rest by the explanation added to Section 141 by the Amending Act of 1976 which specifically says that ‘proceedings’ as used in Section 141 include proceedings under Order 9. Mr. Bhattacharya has, therefore, contended that after the said amendment of Section 141 of the Civil P.C. by the Amending Act of 1976, there is no further scope to contend that an application under Order 9, Rule 9 for restoration of a previous application under Rules 4, 9 or 13 of Order 9 is not maintainable. Mr. Bhattacharya has further submitted that this Court has taken into consideration the effect of amendment of Section 141 of the Civil P.C. in the decision . It has been held by this Court in the said decision that after the amendment of Section 141, if an application under Order 9, Rule 13 is dismissed for default, an application under Order 9. Rule 9 lies for restoration of such application.

6. Mr. Bhattacharya has further submitted that the Civil Procedure Code consists of provisions termed as “the body of the Code” and the provisions relating to rules. The body of the Code cannot be altered except by amendment effected by the Legislature but the provisions relating to the rules can more easily be altered by the amendment effected by the High Courts under the authority of Section 122 of the Civil P.C. Mr. Bhattacharya has contended that in the body of the Code there is no provision which enables a court to set aside dismissal of a suit for default or an ex parte decree but such provisions have been provided only in the rules of Order 9. He has, therefore, submitted that it cannot be contended that the power of the Court to set aside dismissal of a suit for default or of an ex parte decree on sufficient cause being shown, is a substantive right created by the Code. He has contended that the provisions contained in Order 9 are therefore purely procedural and Section 141 is squarely attracted for such procedural matters and the proceedings under Order 9 attract Section 141 of the Code. He has, therefore, submitted that the first point referred to the Special Bench should be answered in the affirmative.

7. Coming to the second question referred to the Special Bench namely what should be the period of limitation for an application for restoratioa of a proceeding initiated on an application under Order 9 when such application is dismissed for default, Mr. Bhattacharya has contended that Art. 122 of the Limitation Act prescribes the period of limitation for filinganapplicationunderR. 4or9ofO. 9of the Code and the period of limitation under Art. 122 to restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs, is thirty days from the date of dismissal. He has contended that the said Art. 122 is, however, not attracted to an application for restoration of a miscellaneous case u nder the provisions of Order 9. A further application under Order 9 for restoration of a miscellaneous case, arising out of an application under Order 9, is not a case of any of the aforesaid descriptions viz. suit, appeal, application for review or revision. Mr. Bhattacharya has contended that there is no article in the Limitation Act of 1963 which specifically deals with the question of limitation of an application for restoration of a miscellaneous case arising out of an application under Order 9 of the Code. He has, therefore, submitted that the question of limitation of such an application should be governed by the residuary articleviz. Art. 137 and the period of limitation under Art. 137 is three years. In support of this contention, Mr. Bhattacharya has referred to the decisions made in the cases of Manindra Kumar Bose v, Santi Rani Biswas, , Union of India v.

Seth Shanti Sarup, reported in AIR 1966 All 530, Sushila Bala Roy v. Madhuri Chowdhury, reported in (1936) 90 Cal WN 363 and Sm. Sayeeda Begum v. Ashruf Hossain and . In the case

, the defendant died during the pendency

of the suit and an application for substitution of the heirs and legal representatives of the defendant was filed within time. While such application was pending, one of the heirs of such defendant also died but no application for substitution of the heirs of such heir of the principal defendant was made within ninety days and it was contended that the suit had abated for non-substitution of the heirs of the defendant. The Division Bench of this Court held in the said decision that in construing the law of limitation, the court must confine itself strictly within the terms of the Limitation Act and should not enlarge the scope of the Act by introducing ‘notional’ defendant in place of the word ‘defendant’ as mentioned in Art. 177 of the Limitation Act, 1908. In such type of cases, the limitation should be governed by the residuary article of the Limitation Act. In the ease reported in AIR 1966 All 530, the question involved was what will be period of limitation for suhstilution of the heirs of a deceased party to an application for certificate under Art. 133 of the Constitution. The Division Bench of the Allahabad High Court held that the deceased party to such an application could not be described as ‘plaintiff or ‘defendant’ or as an ‘appellant’ or a ‘respondent’ and for such decisions, reliance was made on the decision of this Court made in Manindra Kumar’s case . In a recent decision of this Court reported in (1986) 90 Cal WN 363, the question arose what should be the period of limitation for making an application under Order 22, Rule 9 of the Code for bringing the heirs of one of the defendants in a proceeding under Order 9. Rule 13 of the Code. Relying on the decision , it has been held in the said case that

the application for bringing t he heirs of the deceased defendant having been made within a year, no question of abatement has arisen. The Madhya Pradesh High Court in the case

has held that if during the pendency of a miscellaneous case under Order 9, the applicant dies, the miscellaneous case does not abate if no application for substitution is filed within ninety days as provided in Article 120. The proper article of the Limitation Act applicable in such case should be Article 137. Mr. Bhattacharya has, therefore contended that the period of limitation for making an application for restoring the miscellaneous case arising out of a proceeding under Order 9 is governed by Art. 137 and as such the period of limitation is three years. He has, therefore, submitted that the second question referred to the Special Bench should be answered by indicating that an application under Order 9, Rule4 or 9 of the Code for restoring an application under Rules 4, 9 or 13 of Order 9 dismissed for default is governed by Art. 137 of the Limitation Act, 1963 and the period of Limitation is three years.

8. Mr. Mitter, the learned counsel appearing for the opposite parties has disputed the contentions of Mr. Bhattacharya and has submitted that Section 141 of the Civil P.C. attracts only provisions relating to procedure and does not govern the substantive right. He has contended that application under Order 9, Rule 4 or Rule 9 for restoration of application under Order 9, Rule 13 when such application itself is dismissed for default is not maintainable, because right for restoration being a substantive right, the provisions of Section 141 relating to procedural matters cannot be attracted and the position has not been changed even after the Amending Act of 1976 as sought to be contended by Mr. Bhattacharya. Referring to the decisions of the Supreme Court made in Ram Chandra’s case . Mr. Mitter has contended that the proceeding in question arose out of a reference under Section 146(1) of the Cr. P.C. and the question arose whether such proceeding was a civil proceeding or not within the meaning of Section 141 and in that context, the Supreme Court has decided that the said proceeding is also a civil proceeding like a suit or an application for appointment of guardian etc. The Supreme Court has not decided in the said case as to whether or not Section 141 is also attracted in matters concerning substantive right. He has further submitted that in the case before the Supreme Court, a proceeding arose out of an application under Cr. P.C. and such proceeding was obviously a miscellaneous proceeding not relating to any substantive right. He has, therefore, contended that the application under Order 9 of the Civil P.C. for restoring a miscellaneous proceeding under Order 9, Rr.

4. 9 or 13 is not maintainable and Section 141 of the Civil P.C, is not attracted to such a proceeding for restoration of the miscellaneous proceeding arising under Order 9. Mr. Mitter has submitted that the first point referred to the Special Bench should be answered in the negative.

9. Coming to the question of limitation, Mr. Mitter has contended that the period of limitation for restoration of a suit dismissed for default is only thirty days from the order of dismissal. He has submitted that it will be incongruous and opposed to all reasons and equity to hold that although the period of limitation for restoration of a suit dismissed for default is only thirty days, the proceeding for restoration of such proceeding for restoring the suit itself will not be thirty days but will be governed by Art. 137, thereby enlarging the period of limitation up to three years. Mr. Mitter has contended that Art. 122 of the Limitation Act prescribes the period of limitation for making an application under Rule 4 or 9 of Order 9 of the Code. The period of limitation under that Article is thirty days from the date of the impugned order. Mr. Mitter has submitted that a party making an application under Order 9, Rules 4, 9 or 13 is intending to get the suit dismissed for default restored and the period of limitation in such case must necessarily be governed by Art. 122. If a party aggrieved by the dismissal of the suit is required to make an application within a period of thirty days from the date of the order of dismissal, by no stretch of imagination he can be permitted to make an application for restoration of such proceedings for restoration of the suit beyond the period of limitation prescribed for making an application for restoration of the suit dismissed for default. It must be contended that the miscellaneous proceedings arising out of an application under Order 9 for restoration of a suit dismissed for default must necessarily be governed by the period of limitation prescribed for making the application for restoration of the suit dismissed for default and no other period of limitation by resorting to the residuary article and the Art. 137 can be prescribed for making such application for restoration of the miscellaneous proceedings. He has, therefore, contended that the learned Subordinate Judge was justified in holding that the application was presented beyond the period of limitation and no sufficient cause was shown for revival and/or restoration of the said miscellaneous case. Mr. Mitter has also submitted that the Division Bench in referring the question of limitation to a larger Bench has noted that the acceptance of the contention of the petitioner that for making such an application for restoration of the miscellaneous case arising out of an application under Order 9 dismissed for default will be governed by Art. 137 of the Limitation Act thereby enlarging the period of limitation up to three years, will lead to an undesirable result inasmuch as though an application for restoration of a suit dismissed for default cannot be entertained beyond thirty days, an application for restoration of the application under Order 9, Rule 13 of the Code can be entertained at any time within three years from the date of dismissal of such an application. He has, therefore, submitted that the second question should be answered by indicating that the period of limitation for making an application under Order 9, Rule 4 or 9 of the Code for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 of Order 9 of the Code is thirty days from the order of dismissal of such application.

10. After considering the respective contentions made on behalf of the parties, it appears to us that the Civil P.C. has got two parts which may be termed as (a) “body of the Code” and (b) the “rules”. Mr. Bhattacharya, in our view, is justified in contending that the body of the Code is somewhat inflexible inasmuch as the csame cannot be altered except by amendment by the Legislature but the rules concerning with the details and machinery for implementing the various provisions of the Code, require greater flexibility and necessarily they should be easily altered. Precisely for the said purpose, the High Courts have been empowered under Section 122 to bring suitable amendments to various rules under the orders contained in the Civil P.C. Such orders and rules basically relate the procedural matters and they get sustenance from the sections of the Civil P. C. In our view, Mr. Bhattacharya has reasonably contended that while the section in the Civil P.C. creates jurisdiction, the rules indicate the mode in which such jurisdiction is to be exercised and the rules provide for the procedure for implementation of substantive rights created under various sections of the Code. It however appears to us that the rules under various orders of the Civil P.C. are not absolutely procedural but they also dealt with substantive rights. For example we may refer to the provisions of Order 21 of the Code. Various rules under Order 21 indicate substantive rights given to the parties to the suit and also strangers opposing the execution of the decree. It. however, appears to us that the ‘proceedings’ referred to in Section 141 of the Civil P.C. are not confined to only original proceedings. The Supreme Court in Ramchandra’s case has indicated that “proceedings” under Section 141 are of wider amplitude. It also appears to us that the conflict as to whether or not a proceeding under Order 9 will be miscellaneous proceeding as contemplated in Section 141 of the Civil P.C. has now been set at rest by the Amendment Act of 1976. The law courts entertained different views as to whether or not a proceeding initiated on an application made under Order 9 can be treated as a miscellaneous proceeding attracting Section 141 C.P.C or it will be a case of substantive right outside the purview of Section 141. In order to obviate the conflicts in the decisions of various High Courts, an explanation has been added to Section 141 of the Civil P.C. by the Amendment Act of 1976 and within the expression “proceedings”, the proceedings under Order 9 have been specifically included. For such inclusive definition, it is immaterial whether the proceedings initiated on the basis of an application under Order 9 partakes the character of a substantive right or procedural matter. Whatever may be the nature of the proceedings initiated under Order 9 of the Civil P.C., such proceedings are to be treated as miscellaneous proceedings within the meaning of Section 141 of the Civil P.C. as amended. In our view, therefore, the application for restoration of a Misc. Case arising out of an application under Rule 4. 9 or 13 of Order 9 for restoration of the Misc. case if such Misc. case itself is dismissed for default, is maintainable under Order 9 read with Section 141 of the Civil P.C. and the first question referred to the Special Bench is therefore answered in the affirmative.

11. Coming to the second question referred to the Special Bench, it appears to us that if a suit dismissed for default is required to be restored an application for restoration under Order 9 must be made within a period of thirty days from the date of the order of dismissal. It, therefore, conforms to equity and justice that if the proceeding for setting aside the ex parte decree is itself dismissed for default, then the period of limitation cannot be more than the period of limitation for restoring the suit, because the purpose of restoring the miscellaneous case initiated under Order 9 is for restoring the suit itself. It however, appears to us that no specific provision has been provided for in the Limitation Act, 1963 for making an application for restoration of such miscellaneous proceedings arising out of an application under Order 9 to restore a suit dismissed for default. The Limitation Act is a Statute of repose and in constructing the law of limitation, the Court should confine strictly within the provisions of the Limitation Act and should not enlarge the scope of the Act by introducing any notional meaning by implication. The Division Bench of this Court in Manindra Kumar’s case (supra) has held that although for substituting an heir of a defendant in a suit, the period of limitation is ninety days but such period of limitation is not applicable if during the pendency of the application for substitution, one of the heirs sought to be substituted is dead and his heirs are required to be brought on record. In such case, limitation will be governed by the residuary article of the Limitation Act because no provision of the Limitation Act specifically governs such case. The Division Bench has further held that the heir of a defendant of a suit sought to be substituted in the suit cannot notionally mean also the heir of such heir. The aforesaid Bench decision of this Court has been followed not only by this Court but also by other High Courts as indicated hereinbefore. In this connection, reference may be made to an old decision of Privy Council made in the caseof Luchmee Buksh Roy v. Ranjit Ram Pandey, reported in (1873) 20 Suth WR 375 (at p. 377). On the question of interpretation and construction of the provisions of the Limitation Act, the Judicial Committee of the Privy Council has held in the said decision to the following effect : –“It has been said that this case ought to be decided on an equitable construction and not on the strict words of the statute, but their Lordships think that Statutes of Limitation like all others ought to receive such construction as the language in its plain meaning imports. Statutes of limitation are in their nature strict and inflexible enactments.”

12. The Statute of limitation is a disabling act and action for claiming rights flowing from various laws is barred with lapse of time as indicated in the Limitation Act. Limitation for an action in law, therefore, has to be found within the four corners of the statute. In the aforesaid circumstances, it appears to us that although the period of limitation for making an application for restoration of a suit dismissed for default under Order 9 of the Code is thirty days from the date of the order of dismissal, the application for restoration of miscellaneous case arising out of such application under Order 9, when such Misc. Case is dismissed for default, is not governed by the provisions of Art. 122 of the Limitation Act in view of the fact that expressly in terms of the said Art. 122, the miscellaneous case arising out of an application under Order 9 is not attracted and the period of limitation in such case should be governed by Art. 137. We, therefore, answer the second question by indicating that when an application made underO. 9, Rr. 4, 9 or 13 of the Civil P.C. for setting aside a suit dismissed for default is itself dismissed for default and an application under Rule 4 or 9 of Order 9 is made for restoration of the said application, the period of limitation for making such application for restoration is governed by Art. 137 of the Limitation Act, 1963 and the period of limitation is therefore three years. We may however point out in this connection that it appears to us that when the period of limitation for making an appliction under Order 9 for setting aside an ex parte decree is only thirty days from the date of the impuged order, it is highly inequitable to allow a party to avail a long period of three years under Art. 137 of the Limitation Act to make an application under Order 9 for setting aside the order of dismissal of an application made under Order 9 for setting aside ex parte decree. It appears to us that a party in whose favour an ex parte decree has been made cannot but suffer serious prejudice if the fate of the ex parte decree is allowed to hang indefinitely for three years by allowing the other party to make an application for setting aside the order dismissing the application for setting aside ex parte decree at any time within three years. We feel that Art. 122 of the Limitation Acr requires suitable amendment so as to bring the application for setting aside the order of dismissal of the application made under Order 9 for setting aside ex parte decree within the scope and ambit of Article

122.

13. If may be noted in this connection that Mr. Mitter has strenuously contended that in the facts and circumstances of the case, it is quite evident that the Misc. case was allowed to be dismissed for default without any reasonable cause and even if such application under Order 9 read with Section 141 of the Code is maintainable and even if the period of limitation for making such application is governed by Art. 137 of the Limitation Acf, the petitioners having failed to make out any case for restoration of the said Misc. case by showing that for any sufficient cause they had been prevented from appearing at the hearing of the said Misc. case since dismissed for default, the application for restoration of the Misc. case should have been dismissed even on merits and this revisional application, therefore, should be dismissed in any event. Mr. Mitter has also submitted that the Special Bench is also a Special Division Bench and since the revisional application is before this Bench, the Special Bench should not only answer the questions referred to it but should also dispose of the revisional application on merits in order to shorten the course of litigation. Although there is some force in the contention of Mr. M itter, but we refrain from considering the merits of the case since the hearing was confined to the points referred to this Bench and the learned counsel for the petitioner has not advanced his arguments in support of the case for restoration on merits. We, therefore, send the revisional application before the appropriate Division Bench for disposing of the same on merits. It is reasonably expected that the Division Bench will give utmost priority to this revisional application pending for a long time and dispose of the case at the earliest. In the facts of the case, there will be no order as to costs.

N.K. Mitra, J.

14. I agree.

K.M. Yusuf, J.

15. I agree.

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