ORDER

The present Civil Miscellaneous No. 406 of 2021 has been filed by the petitioner, under Article 227 of the Constitution of India, for setting aside the order dated 17.08.2021, passed by Ld. District Judge, Patna in Miscellaneous Case No. 36 of 2021, whereby Ld. District Judge, Patna had transferred the Miscellaneous Case No. 36 of 2021 to the court of Ld. ADJ-X, Patna for hearing and disposal, ignoring the submission of Ld. counsel for the petitioner that the said miscellaneous case before the Ld. District Judge is not maintainable. As such, by not dismissing the miscellaneous case, Ld. District Judge impliedly upheld the admission of the case before himself and transferred it to the Court of Ld. ADJPatna X, Patna for further proceeding.

2. The relevant factual matrix of the case is that Miscellaneous Case No. 18 of 2014 was filed by the Respondent under Section 34 of the Arbitration and Conciliation Act, 1996 against the arbitral award dated 10.05.2014, in the Court of Ld. Sub-Judge-1, Patna. However, later on, the same was transferred to the Court of Ld. District Judge, Patna, where it was numbered as Miscellaneous Case No. 78 of 2017 on 05.06.2017 and thereafter the same was transferred to the Court of Ld. ADJ-X, Patna for hearing and disposal. However, the said Miscellaneous Case No. 78 of 2017 was dismissed for non-appearance of the petitioner, who is Respondent herein, on 12.12.2019.

3. For restoration of Miscellaneous Case No. 78 of 2017, Miscellaneous Case No. 36 of 2021 was filed under Order IX Rule 4 of the Civil Procedure Code before Ld. District Judge, Patna, which was admitted on 05.03.2021 after condonation of the delay in filing the petition. An application was filed by the Respondent who is Petitioner herein, before Ld. District Judge questioning the maintainability of the Misc. Petition before Ld. District Judge. However, Ld. District Judge, Patna did not dismiss the Misc. Case and transferred the said miscellaneous case to the Court of Ld. ADJ-X for hearing and disposal.

4. Ld. counsel for the petitioner herein submits that restoration application under Order IX Rule 4 of the Civil Procedure Code, should have been filed before the same court of Ld. ADJ-X, Patna which has dismissed the Miscellaneous Case No. 78 of 2017 for default, because it is settled principle of law that the same court, which has dismissed the petition, can have the jurisdiction to entertain the restoration application. He relies upon the case of Sumesh vs. Jijimol S. as reported in (2019) 4 KerLJ 972, wherein Hon’ble Kerala High Court has observed that it is needless to say that the proper remedy to challenge an order dismissing the suit for default is an application under Order 9 Rule 9 of the CPC, to set aside the dismissal for default, before the court, which dismissed the suit for default itself. He further relies upon the judgment of Luchhtnan Dass vs. Devi Dial as reported in AIR 1920 Lahore 418 wherein the Hon’ble High Court was pleased to observe as follows: –

“The first contention is correct, for reading together Rr. 3 and 4 O. 9 Civil P.C., it is clear that the Court which can under R. 4 set aside an order dismissing a suit for default is the Court which passed the order of dismissal.”

5. However, per contra, Ld. counsel for the Respondent submits that under the Commercial Courts Act, 2015 the Principal Judge is a District Judge and as such, he can entertain such application of restoration. He further submits that Miscellaneous case was filed during Corona period and at that time, the Court of Ld. ADJ-X was also vacant. He has also relied upon the case of The Commissioner, Mysore Urban Development Authority vs. S.S. Sarvesh, (Civil Appeal No. 1463 of 2019), decided on 05.02.2019.

6. Perused the case records and considered the submissions advanced by Ld. counsel for the parties. On reading Rule 4, Order IX of the Civil Procedure Code, it clearly transpires that the court, which has dismissed the suit or any petition for default o