The dismissal of a restoration application under Order 9 Rule 9 is an appealable order under Order 43 Rule 1(c) read with Section 141 of the Code of Civil Procedure.

( 1 ) IN the referring judgment of the Hon'ble Single Judge dated 8th August, 2003, his Lordship has noted the point of difference arising out of the short but reported earlier judgment of Dulal Chandra Ojha, reported at AIR 1989 cal. 91.

( 2 ) THE point of reference is about the maintainability of a revisional application under Section 115.

( 3 ) THE plaintiffs'/applicants' suit was dismissed for default. After some proceedings in the High Court, the application for restoration (originally made under Section 151 was treated as an application made under Order 9 Rule 9; the said restoration application was also dismissed for default. A revisional application is maintainable and that the order is not appealable.

( 4 ) THIS has been contested by the opposite parties.

( 5 ) THE short point, therefore, is whether the dismissal of a restoration application is an appealable order within the Code.

( 6 ) THE reported judgment mentioned above does not mention any reasons for holding it to be so.

( 7 ) IN the later judgment his Lordship has held that the express words of Order 43 Rule 1 sub-rule (c) mention a suit and a dismissal of an application for restoration of a suit. Thus, restoration application or its dismissal is not covered by the express words.

( 8 ) BOTH the parties have had to rely upon the identical portions of the code of Civil Procedure. These are as follows :-a) "141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil. Jurisdiction. Explanation - In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceedings under Article 226 of the Constitution. B) Section 104, Orders from which appeal lies (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders :- (i) Any order made under rules from which an appeal is expressly allowed by rules : c) Order 9, Rule 9. (1) Where a suit is. . . . . . . . . . . . . . . . . . dismissed. . . . . . . . . . . . . the plaintiff. . . . . . . . . . . . . . .

. . if he satisfies the Court that there was sufficient cause for his non-appearance. . . . . . . . . . . . . . . . . the Court shall make an order setting aside the order of dismissal. . . . . . . . . . . . . . D) Order 43 Rule 1 : Appeal from orders :-an appeal shall lie from the following orders under the provisions of Section 104, namely,. . . . . . . . . . . . . . . . . (c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

( 9 ) THE plain meaning of these portions of the Code is quite clear. The authorities also support such plain construction,

( 10 ) UNDER Section 141, if there is a proceeding within the meaning of that section which is not a suit, the procedure for suits shall be followed. As such, whenever possible, in the sections or in the orders, the word suit is to be read as suit proceeding within the meaning of Section 141.

( 11 ) THE Section 141 states that the procedure provided in the Code is to be followed in those other proceedings.

( 12 ) IT is incorrect, in our opinion, to construe this phrase in a limited way and give the word procedure, occurring there; a limited meaning. It is incorrect to construe that word only to mean the. so-called procedural part of the Code of Civil Procedure, and hold that only that part is made applicable to the other proceedings, but not the substantive part of the Code. The code itself is a Code of Civil Procedure. It contains matter of substantive right which are not matters of mere procedure, as ordinarily understood. But the "procedure provided in this Code" is a phrase which refers to the entirety to the Code and not merely to a part of it.

( 13 ) IF it were the