The court has inherent power to restore an application which has been dismissed in default of appearance, even if an appeal is available against the order of dismissal.

( 1 ) IN this revision, two questions arise for determination, namely, (1) where a petition under section 20 of the Arbitration Act has been dismissed in default of appearance and an application filed for its restoration is also dismissed in default of appearance, whether or not a further application for restoring the previous application for restoration would be maintainable under the law and (2) whether the impugned order of the Court below allowing such second application suffers from a legal or jurisdictional infirmity.

( 2 ) THE facts giving rise to the revision are that the respondent herein filed an application under section 20 of the Arbitration Act in the Court of a Subordinate Judge 1st Class, Delhi which was, as required by sub-section (2) of section 20 of the Act, numbered and registered as a suit. The same was dismissed on 24th April, 1967 in default of appearance under Order 9, Rule 8, of the Code of Civil procedure. On the same date, the respondent filed an application under Order 9, Rule 9 of the Code for restoration of the main petition. Notice of the said application was issued, but it appears that during its pendency, some proceedings for substitution of legal representatives were initiated, but eventually on 17th January, 1968, the said application for restoration was itself dismissed in default of appearance of the respondent- company herein and its counsel. The respondent then filed another application on 14th February, 1968 purporting to be under Order 9. Rule 9 and section 151 of the Code of Civil Procedure for restoration of the first application for restoration which had been dismissed on 17th January, 1968. The ground on which restoration was sought in the second application was that the counsel had made a wrong entry by mistake in his diary and so the respondent and its counsel were prevented by a sufficient cause from not appearing on 17th January, 1968 when the application was dismissed. The Court below recorded the evidence and believed the counsel for the respondent, Mr. K. R. Chawla, who had given evidence in the case. The Court found there was sufficient ground for restoration of the application and consequently it allowed it on payment of Rs. 30. 00 as costs by order dated 8th April, 1970 which has been challenged in the present revision. One of the objections raised by the petitioners before the Court below, and which forms the subject-matter of revision, was that the application itself was not maintainable.

( 3 ) THE revision was admitted and it came up for hearing before one of us (Tatachari, J.) who heard the contention of the counsel for the petitioners that the application was not maintainable under any provision of law and noticed the divergence of opinion amongst the various High Courts on the question whether such a second application was competent under Order 9, Rule 9 of the Code of Civil Procedure or under section 151 of the Code or not at all. The case has, therefore, been placed before the Division Bench and we have heard the learned, counsel for the parties at a considerable length.

( 4 ) THE decisions of the High Courts disclose three divergent views, firstly that the order passed on the first application is appealable under clause (c) or for that matter clause (d) of rule 1 of Order 43 of the Code of Civil Procedure and since the same provides a specific remedy, a second application for restoration would not be maintainable either under Order 9, Rule 9 read with section 141 or under section 151 of the Code. This is the view propounded by the High Court of Patna in Doma Choudhary vs. Ram Naresh Lal, A. I. R. 1959 Patna 121 (Full Bench ). The second view is that the second application is maintainable under Order 9, Rule 9 of the Code itself by the force of section 141. This view has been taken by the High Court of Andhra Pradesh in Raja Appa Ro vs. Veera Raghava, A. I. R. 1966 Andhra Pradesh 263, where the aforesaid view of the High Court of Patna did not find f