An application for restoration of a suit dismissed for non-prosecution under Order 9, Rule 4, Civil Procedure Code, does not require notice to the opposite party, whereas an application for restoration under Rule 9 of that order does require such notice.

Raj Kishore Prasad, J.

1. Defendants 2 and 3, who are the defendants second party to the suit, are the petitioners before this Court. They have moved this Court against the order of Mr. S.K. Basu, Munsif Sitamarhi, dated 6-8-1955, by which he has allowed the application of the plaintiff-opposite party under Order 9, Rule 4, Civil P.C., and restored the suit to its original file.

2. In support of the rule Mr. Prem Lall, appearing for the petitioners, contends that the order of the Court below is without jurisdiction because no notice was given to him of the restoration application, and the suit was restored without any notice to him and the Court below wrongly treated the application of the plaintiff under Order 9, Rule 4, intend of under Order 9, Rule 9, Civil P. C. In order to appreciate his point it is necessary to state certain facts. The suit was fixed for 18-7-55 for hearing. On 18-7-55 both parties, namely, the plaintiff and the defendants-petitioners applied for time, but the Court below rejected the applications for time of both the parties, because the suit was an old one, and directed the parties to get ready at once. Later in the day, when the suit was again taken up none of the parties took any steps nor were they present when the suit was called on for hearing, and therefore, the Court below recurded the following order "Neither party takes any steps in spite of the above order. The suit is, therefore, dismissed for non-prosecution". The plaintiff thereafter on 25-7-55 made an application, purporting to be under Order 9, Rule 4, Civil P. C which having been filed within time, was fixed for 6-8-55 for disposal. On 6-8-55 when the Miscellaneous case was taken up for hearing, the lawyer for the petitioners appeared and sought permission of the Court to contest the case by cross-examining the witness of the applicant. This prayer was allowed, and accordingly the plaintiff-opposite party examined a witness, but when the lawyer for the petitioners was asked to cross-examine the witness, he submitted before the Court that he would file a petition for adjournment of the hearing of the case. The Court considered that it was not proper to adjourn the case in the circumstances mentioned above, and also because it thought, the application had been made under Order 9, Rule 4, Civil P. C. and, therefore, no notice was necessary, and accordingly the witness was discharged and thereafter the Court considered the evidence of the plaintiff, and restored the suit.

3. The main contention of Mr. Prem Lall is that the application for restoration, though purporting to have been made by the plaintiff under Order 9, Rule 4 of the Code, should be treated as an application under Rule 9 of that order, and as such, a notice under Rule 9 (2) of that order was imperative on the petitioners before allowing the restoration. That raises a question whether the suit had been dismissed under Rule 3, or Rule 8 of Order 9. Civil P. C. The difference is this : Rule 3 contemplates neither party appearing when the suit is called on for hearing; whereas Rule 8 contemplates the defendant appearing and the plaintiff not appearing when the suit is called on for hearing. Where the suit is dismissed under Rule 3, the plaintiff may either bring a fresh suit, or he may apply for an order to set the dismissal aside. On the other hand, where a suit is dismissed under Rule 8, a fresh suit is barred, but the plaintiff is given liberty to apply under that rule to set aside, the order of dismissal. Rule 4 does not provide for any notice being given to the opposite party before restoring a suit. But Rule 9, Clause (2) clearly provides that no order shall be made under this rule unless notice of the application has been served on the opposite party. If, therefore, the application of the plaintiff be considered to be one under Rule 4 of Order 9, as it purported to be, then clearly no notice was required to be served, but if the application is considered to be unde