A second application under Order 9, rule 9 of the Civil Procedure Code is not maintainable where an earlier application preferred under the same provision has been dismissed.

Pritam Singh Saffer, J.

( 1 ) THIS petition is directed against an order made by the Additional District Judge, Delhi, on the 7th of February, 1966. By that order he dismissed the appeal which had been filed against the order dated the 26th March, 1965, passed by the Sub-Judge, who dealt with an application filed under Order 9 of the Civil Procedure Code.

( 2 ) THE petitioner had filed an application under sections 14. 17. 33, 8, II and 12 of the Arbitration Act, on the 3rd of February. 1964. in tile court of the Senior Sub-Judge, Delhi. The application bearing the verification under the date 27th January, 1964, was filed actually on the date mentioned above. The trial court initiated proceedings on the said application and the respondents came before it. On the 26th of November, 1964, which was the date fixed for the defendants to adduce evidence, the case was called out at 10. 40 a. m. The record bears an order to the effect that nobody was present on behalf of the present petitioners who were the applicants before the court. It may be observed that the application preferred under the Arbitration Act had been registered as a suit. While nobody was present on behalf of the applicants (plaintiffs), the defendants were represented by their counsel. The trial court did not consider it appropriate to dismiss the application (suit ). The matter was adjourned for being called out again. On the same day i. e. 26th November, 1964, the case having been called out again it was found that nobody was present on behalf of the plaintiffs. It was noticed that the witnesses called by the defendants were present. In those circumstances the suit was dismissed. The order was made by the trial court while exercising its powers in terms of Order 9 rule 8 of the Civil Procedure Code.

( 3 ) THE plaintiffs, who are the petitioners before me. made an application under the date 26th November, 1964. itself. The application was made under Order 9, rule 13 with the prayer that the suit be restored for evidence. A note was put up to the court which contained the objection that the application was under Order 9, rule 13 and the same was not accompanied by any affidavit. On the 28th of November. 1964, the trial court passed the following order :-

"the application is without an affidavit. It is under Order 9, rule 13 Civil Procedure Code. No such application is maintainable on the allegations made in the petition. Hence dismissed. "

IT is nobody s case that an application could have been preferred under Order 9, rule 13. The trial court had not passed any ex-partc decree. It had dismissed the suit in terms of rule 8 of order 9 of the Civil Procedure Code. The application preferred being incompetent was rightly dismissed. A second application was then preferred by the present petitioners under the date 30th November, 1964, under Order 9, rule 9 of the Civil Procedure Code. That application is on page 185 of the original record. Tt is indeed intriguing as to why the plaintiffs who had incurred the dismissal of their suit on the 26th of November, 1964, and who had been careless in preferring the first application under Order 9, rule 13, were so abundantly careless once again so as not to mention at all the names of the parties in the application preferred under the date 30th November, 1964. I find from a perusal of the record that the application is headed by the description of the name of the officer before whom it was being preferred and thereafter it is typed therein that the application was for restoration of the suit and to set aside the order dismissing the suit in default under order 9, rule 9 of the Civil Procedure Code. There is a complete absence of the description of the parties. The application was rightly dismissed by the order dated the 7th of December. 1964. The court could not know as to with which suit the application was concerned. No application was preferred under Order 9. rule 9 of the said Code lor the restoration of that application along w

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