1. Heard Mr. Yogendra Prasad Sinha, learned counsel for the petitioner and Mr. Shashi Shekhar Dwivedi, learned senior counsel tor the opposite party.

2. The present application has been tiled by the defendant-petitioner being aggrieved by an order by which the amendment of plaint, as sought for by the plaintiff, has been allowed. I may mention that the trial has not yet begun in the suit.

3. The plaintiff had filed a suit for, inter alia, a declaration that an adoption made in the family was binding or not binding. In the plaint the averments were made to the effect that about 25 years back they had filed alongwith others a similar suit, which was not pursued by either party and was dismissed. Though this fact was mentioned no relief against the said dismissal order was prayed for. By amendment the said missing relief is being prayed for in terms that the order dismissing the suit for non-prosecution for default of party be set aside and suit be restored.

4. The defendant-petitioner asserts before this court that in terms of Order iX, Rule 4 of the Code of Civil Procedure the remedy open to the plaintiff was either to pray to recall of the order dismissing the suit by an ap