Oral Judgment:

1. By order dated 28th July, 2009, this Court directed that this Petition shall be heard finally at the stage of admission. The submissions of the learned counsel appearing for the parties were heard earlier. One of the issues involved in this Petition is whether a revision application under section 29(3) of the Bombay Rents Hotel and Lodging House Rents Control Act, 1947 (herein after referred to as said Act of 1947) was maintainable.

2. The Petitioners are the original Plaintiffs and the Respondents are the original Defendants. The suit was filed in the year 1982 for possession against Respondents under the provision of the said Act of 1947. The present Petitioners are the legal representatives of the original Plaintiff. An application was made by the Petitioners seeking permission to delete the names of 2nd to 4th Respondents. The said application was filed by the Petitioner No.1(c) on 31st March, 2005. According to the Petitioners, they alongwith their Advocate were under an impression that the suit was pending for passing an order on the said application. According to Petitioner, on 8th November, 2005, the Petitioners and their Advocate learnt that the suit has been dismissed in default. It was noticed that application for deletion of Respondent Nos.2 to 4 was allowed by the Trial Court and time of 14 days was granted for carrying out amendment. The said order was not complied with. Therefore, a notice was taken out by the Petitioners for restoration of the suit. The notice was dismissed by the learned Judge of the Court of Small Causes. A Revision Application was preferred by the Petitioner which has been rejected by the Appellate Bench of the Court of Small Causes Court. The Revision Application was dismissed by holding that the order of dismissal of the suit was under rule 8 of order IX of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”) and therefore, against the order of the Trial Court dismissing the application for restoration, an appeal was maintainable.

3. The learned counsel appearing for the Petitioners submitted that this was a fit case where the order of restoration ought to have been passed by the Trial Court. Inviting my attention to the case made out in the application for restoration, he submitted that the revision application filed by the Petitioner was maintainable under section 29 (3) of the said Act of 1947. He criticized the finding of the Appellate Court that impugned order has been passed under rule 8 of Order IX of the said Code. He submitted that the order of dismissal of the suit was passed by the Trial Court under rule 3 of order IX of the Code and, therefore, a remedy for applying for restoration under rule 9 of order IX of the said Code was not available to the Petitioners. He has relied upon the various decisions of this Court to show that a revision application under section 29(3) of the said act of 1947 was maintainable.

4. The learned counsel appearing for the first Respondent submitted that the revision application ought to have been heard on merits. In fact, when the Petition appeared before this Court on 28th July, 2009, a statement of the learned counsel appearing for the first Respondent was recorded by this Court that the revision application was maintainable. His submission was that as the revision application was maintainable, this Writ Petition may not be entertained and the revision application be ordered to be heard on merits.

5. I have carefully considered the submissions. It must be noted that the challenge in this Writ Petition is to both the orders i.e. order of the Trial Court as well as order of the Appellate Bench in Revision Application. On 8th November, 2005, the suit was dismissed by following order:-

ORDER

None present. Hence suit is dismissed in default

No order as to cost.

Thus, the suit was dismissed in default when both the parties and their Advocates were absent. The Rule 8 of order IX applies to a situation