Full Judgment
S.C. Pratap, J.
1. Order dated 3rd May, 1975 passed by the trial Court rejecting petitioner's application for restoration of her case being Misc. Judicial Case No. 28 of 1973 is the subject matter of this revision application therefrom.
2. The original proceedings were matrimonial proceedings between the petitioner and her husband, the opponent herein. The husband had filed Hindu Marriage Suit No. 37 of 1972 for divorce. The said suit was decreed ex parte on 7th January, 1973. The petitioner herein filed application Misc. Judicial Case No. 28 of 1973 for setting aside the ex parte decree and for hearing the divorce suit on its own merits and in accordance with law with opportunity to her to defend the same. This application for restoration was, however, dismissed on 17th December, 1973 as the petitioner's Advocate, Mr. V.D. Pendse, was not able to attend the Court on that day. It is hence that the petitioner filed the present application Misc. Case No. 4 of 1974 for setting aside the order dated 17th December, 1973 dismissing her Misc. Judicial Case No. 28 of 1973. The trial Court dismissed this application on 3rd May 1975 on the ground that the same was not tenable even under section 151 of the Code of Civil procedure. In support, the trial Court referred to a ruling of this Court in D.B. Manke v. B. Walwekar, A.I.R. 1923 Bom 386. It is against this rejection that the petitioner has preferred the present revision application.
3. Mr. Sanyal, the learned Advocate appearing for the petitioner, has invited my attention to a subsequent Division Bench ruling of this Court in Laxmi Investment Co. Pvt. Ltd. Akola v. Tarachand Harbilas and others, : AIR1968 Bom250 . In this ruling, the Division Bench has considered the earlier ruling of this Court in Manke v. Walwekar, A.I.R. 1923 Bom. 386. In Laxmi Investment Company case supra, the Division Bench has categorically held as follow :
'At no stage did the Division Bench in manke's case say that section 151 would not or did not apply. On that contrary, they assumed that it would apply but showed that upon the facts and circumstances of case even if it applied sufficient cause had not been made out. We cannot, therefore, regard that case as authority for the proposition that under section 151 the second application would not lie to restore to file the application under Order IX, rule 9 dismissed for default. It is the head note of the case which gives a completely wrong impression.'
4. Position, thus, emerging is that section 151 can apply to a case as the instant one. Unfortunately, the aforesaid subsequent Division Bench ruling in Laxmi Investment Company case does not appear to have been brought to the notice of the trial Court. If it had been so brought, I have no doubt that the trial Court itself would not have rejected the instant application on the ground that it was not tenable and on the ground that section 151 cannot be invoked. Position thus is that section 151 can be invoked in a case as the instant one. Whether after invoking the same, the instant application should be granted or should not be granted, is a different matter altogether, but it would not be correct to the reject the application on the ground that section 151 cannot apply thereto at all. I, therefore, hold that the instant application was maintainable and it was open to the Court to consider whether to grant or not to grant the same under the provisions of section 151 of the Code of Civil Procedure.
5. Coming to the merits, I find this to be a prominently fit case for the grant of the said application. Mr. Pendse, the learned Advocate for the petitioner, could not remain present at the hearing of Misc. Judicial Case No. 28 of 1973 as he had suffered an accident and had sustained fracture and was, therefore, immobilized and, consequently, could not attend the Court. When such was the unfortunate position of the petitioner's Advocate and that being the reason for his absence from the Court on the relevant date, it can, by no stretch, be held that there was no sufficient cause in that behalf. In my view, more than sufficient cause has been established. Indeed, case was prominently one for the grant of the instant application and for setting aside the order rejecting Misc. Judicial Case No. 28 of 1973.
6. In the result, this revision application is allowed. Impugned order dated 3rd May, 1975 is set aside. The instant application Misc. Case No. 4 of 1974 is allowed and granted. Order dismissing Misc. Judicial Case No. 28 of 1973 is set aside and the said case is restored. The trial Court is directed to hear and decide the said Misc. Judicial Case No. 28 of 1973 on its own merits and in accordance with law and after hearing both the sides in that behalf.
7. Rule earlier issued on this petition stands made absolute.
8. In the circumstances of the case, however, there will be no order as to costs.