An application for restoration under Sec.151 may be maintainable if the order dismissing the application under the relevant rule is not appealable.

N.L.Untwalia, J.

1. The petitioners suit was dismissed on the 20th September 1957 under Order 9, Rule 3, Civil Procedure Code, as neither he nor anybody on behalf of the defendants responded to the call for hearing of the case. Thereafter he filed an application under Order 9, Rule 4 for its restoration. That application also was dismissed for default on the 3rd December 1957. Thereafter the petitioner put in an application under Sec.151 of the Code for restoration of the miscellaneous case No. 57 of 1957 which was filed under Order 9, Rule 4. This application has been dismissed by the learned Munsif on the ground that the application under Sec.151 is not maintainable. No facts in support of this application have been investigated.

The application has been dismissed by placing reliance upon Ramghulam Singh V/s. Sheodeonarain Singh, 4 Pat LJ 287 : (AIR 1922 Pat 121). The view expressed in this case has been reiterated in a recent Full Bench decision of this Court in Doma Choudhary V/s. Ram Naresh Lal, 1958 Pat LR 413 : (AIR 1959 Pat 121), but the point of distinction, which has been rightly pointed out to me by Mr. U. C. Sharma appearing in support of this application, is that if the order dismissing the miscellaneous case is an appealable one, no application under Sec.151 for restoration of that case except under some special circumstances is maintainable, but in the instant case the order dismissing the application under Order 9, Rule 4 is not an appealable one and therefore the application for its restoration under Sec.151 ought to have been entertained on merits. I find force in this argument, although I may express my difficulty in appreciating this point of distinction fully. Even if the order dismissing a miscellaneous case under Order 9, Rule 9 or under Order 9, Rule 13 is appealable, I am feeling some difficulty to follow how the appellate court hearing the appeal against the order of dismissal will be able to investigate into the contested facts which may be put forward on behalf of the parties before it as to whether there was sufficient cause which prevented the applicant from appearing when his miscellaneous case was called out for hearing. Unless the appellate court takes additional evidence in the case or directs an enquiry by taking additional evidence by the lower court, the contested facts would not be decided, and in absence of any decision on those contested facts the appellate court would find it difficult to set aside the order of dismissal without the aid of the necessary findings on further facts. In the instant case the application under Order 9, Rule 4 was dismissed for default and there is no specific provision in the Code which empowers a court to investigate new facts which are now placed in another application for restoration of the miscellaneous case and they cannot but be investigated under inherent powers of the court. That being the position, as already stated, I find it somewhat difficult to fully appreciate the distinction between the types of cases, but since stress in the Full Bench decision has been laid on the appealable character of the order passed in order to decide whether a restoration application under Sec.151 would be maintainable I hold in the present case that, that not being so, the application under Sec.151 was maintainable. In that view of the matter, I allow the civil revision application, set aside the order of the learned Munsif dated the 5th July 1958 and direct that the petitioners application under Sec.151 shall be investigated by taking evidence on merits and shall be disposed of there after in accordance with law. As there is no appearance on behalf of the other side, I shall make no order as to costs.