Judgment:
1. I have heard the learned counsel for the parties. The order dated July 11, 1980 of the learned Additional District and Sessions Judge No. 1, Jaipur City cannot be sustained.
2. One Gopal Lal since dead and now represented by the non-petitioners Nos. 1 to 9 had filed a suit for mesne profits amounting to Rs. 14.400/-against Phool Chand and Rajmal on May 30, 1967. Gopal Lal plaintiff died during the pendency of the suit and his heirs were brought on record as plaintiffs and proforma defendants. In the case 17th and 18th Feb., 1977 were fixed for recording the evidence of the plaintiffs and their witnesses. On that date neither the plaintiffs nor their witnesses were present and the case was adjourned to February 18, 1977, the next date already fixed. On that date also neither the plaintiffs nor their witnesses were present and awaiting till 12.30 p.m. the Court dismissed the suit in default.
3. An application for restoration of the suit was filed on behalf of the plaintiff for restoring the suit to its original number. It may be stated that Phool Chand was one of the defendants in the suit and he died on June 14, 1977. Thus, he died during the pendency of the application under Order 9, Rule 9, CPC for restoration of the suit dismissed in default. The learned trial Court under the impugned order dated July 11, 1980 allowed the application for restoration on payment of Rs. 300/- as costs.
4. A two fold contention has been raised by the learned counsel for the petitioners that no notice was given to the petitioners and the other legal representatives of deceased defendant Phool Chand, though Phool Chand was present when the order dated February 18, 1977 dismissing the suit in default was made and that the impugned order does not say that there was sufficient cause for his non-appearance on 18th February, 1977.
5. The contention of Mr. A.K. Bhandari, learned counsel for the plaintiff-respondents is that even if no notice was given to the legal representatives of deceased defendant Phool Chand of the application under Order 9, Rule 9, CPC so far as the petitioners the two of the legal representatives of deceased Phool Chand are concerned, they filed an application before the learned trial Court on February 23, 1979 and as such they had sufficient notice of the application under Order 9, Rule 9, CPC. Therefore, they cannot be allowed now to say that an order has been passed without giving any notice to them. Mr. Goyal, who represents the non-petitioners Nos. 11 to 13, the other three legal representatives and deceased Phool Chand, has contended that even if it may be assumed that so far as the petitioners are concerned they had submitted an application in the proceedings under Order 9, Rule 9,CPC his clients and two others who are also the legal representatives of deceased Phool Chand were not given any notice of the application under Order 9, Rule 8, CPC and unless a notice would have been so given, the application could not be allowed and the suit could not be ordered to be resorted to its original number.
6. A look at a daily Hindi newspaper 'Nav-Jyoti' dated 18th February, 1987 will show that in that newspaper a notice under Order 22, Rule 4, CPC for restoration of the suit was published. It does not appear that any notice was given so far as the application under Order 9, Rule 9, CPC is concerned. It may be stated that so far as the original suit is concerned it cannot be said to be pending unless the application for restoration of the suit filed by the plaintiffs under Order 9, Rule 9, CPC would have been allowed and the suit would have been restored to its original number. Thus, it appears that some application under Order 22,Rule 4, CPC was filed in the suit, which was not pending and it cannot be said that any notice was given of the application under Order 9, Rule 9. CPC either to the petitioners or to other legal representatives of deceased defendant Phool Chand which have been arrayed as non-petitioners Nos. 10 to 13. It may be stated that when the suit was dismissed in default for non-appearance of the plaintiffs on February 28, 1977 on that date Rajmal defendant No. 2 was personally present and Shri Krishna Behari, Advocate was present for defendant No. 1 who was Phool Chand. Thus, the suit having been dismissed in the presence of Rajmal and Phool Chand it was necessary that before an application under Order 9, Rule 9, CPC for restoration of the suit would be allowed, notice must have been given to both Rajmal and Phool Chand and having died, to his legal representatives. No such notice appears to have been given. Even if it may be assumed that so far as the petitioners are concerned, they filed an application in the proceedings under Order 9, Rule 9, CPC before the learned trial Court and as such they had notice of the proceedings and notice to them was necessary, but so far as the other legal representatives of deceased Phool Chand are concerned viz., Smt. Mehtab Devi, Smt. Chanda Devi and Smt. Kanchan Devi, no notice was given to them. A bare look at Order, 9 Rule 9(2), CPC will show that no order under sub rule (1) of Rule 9 of Order 9, CPC can be made unless notice of the application have been served upon the opposite party. Therefore, it can be said that the application under Order 9, Rule 9 CFC has been allowed without affording an opportunity to show cause to such of the defendants or his legal representatives who were present when the order dismissing the suit for default was made.
7. It is not the end of the matter, a bare reading of Order 9, Rule 9, CPC will show that the Court has no jurisdiction to allow the application under Order 9, Rule 9, CPC and to set aside the order dismissing the suit in default if the plaintiff/plaintiffs satisfied that there was sufficient cause for non-appearance when the suit was called for hearing. Therefore, the Court only gets jurisdiction on its satisfication that there was sufficient cause for the non-appearance of the plaintiffs when the suit was called for hearing. A look at the impugned order will show that all that has been mentioned therein is that if the application is not allowed the applicant, i.e., the plaintiff shall suffer irreparable loss. Neither the Court adverted to the question as to whether the plaintiff has satisfied the Court that he was prevented from sufficient cause from appearing in the court on February 18, 1977 nor the Court has recorded such a finding or conclusion. Thus, even on this score, it can be said that the court has in the exercise of jurisdiction acted illegally and with material irregularity.
8. Consequently, the revision petition is allowed, the order dated July 11, 1980 of the learned Addl. District Judge, Jaipur City is set aside. The case is remanded back to the Court with the direction that the Court shall hear the parties, allow them an opportunity to file objections to that application and thereafter dispose of the application under Order 9 Rule 9 CPC afresh in accordance with law. The parties are directed to be present in the Court of Additional District Judge, Jaipur City, Jaipur on 9 10-1987.
9. Costs made easy.