A Civil Court can restore a suit to its file only after complying with the mandatory provisions contained in O. 9 Rule 13 of the Code of Civil Procedure.

ORDER:- This Civil Revision under S.115 of the Civil Procedure Code is directed against an order dated 20-5-1974 passed in Misc. (J) Case No. 8 of 1973 arising out of Title Suit No. 15 of 1971.

2. The petitioner company, as plaintiff, filed a suit, being Title Suit No. 15 of 1971, in the court of the Munsiff at Mangaldoi against the opposite party for a declaration of title and for ejectment from the suit land. The opposite party as defendant appeared in court and filed written statement and in due course the matter came up before the learned Munsiff who passed an ex parte decree on 14-11-1972. Thereafter, on 11-1-1973 the opposite party filed an application purported to be under Or. 9 R.13 of the Civil Procedure Code for setting aside the ex parte decree, which was contested by the present petitioner and thereafter several adjournments were taken by the parties from time to time and at long last the matter was posted for hearing on 14-3-1974. But on that date the Presiding Officer of the court, namely, the Munsiff was absent. On that date, on behalf of the petitioner, an application was filed complaining that although the present O. P. was away in Bangladesh, in the Hazira filed in Court his name was shown as present in court on 13-1-1974 and 14-3-1974. On receipt of this application, the Civil Shristadar in charge of the Munsiffs court, who could not fix any date of hearing of the suit passed an order directing that the matter may be put up for orders on 22-4-1974; on 22-4-1974, the learned Munsiff was again absent and accordingly the matter had to be put off for 20-5-1974. The order dated 22-4-1974 as well, was passed by the Civil Shristadar who had no power and jurisdiction to fix a date of hearing of the suit. Accordingly the case came up on 20-5-1974 before the Munsiff. As stated earlier, on that date, apparently the case was not fixed for hearing of any other matter excepting for consideration of the application filed by the petitioner on 14-3-1973. But on that date, namely, 20-5-1974, the present petitioner filed an application stating about the illness of the representative of the plaintiff-company and also stated that the learned counsel of the petitioner was away in Shillong, wherefor a prayer was made for adjournment. But the learned Munsiff rejected the said application stating that the applicant namely, one Tarini Misra had no locus standi to file the said application and in the same breach the learned Munsiff restored the suit to file observing as under:-

"The original suit is restored to file due to the absence of the plaintiff."

3. This application has been filed under S. 115 of the Civil Procedure Code and is directed against the impugned order dated 20-5-1974. Sri J.N. Sarma, the learned counsel appearing on behalf of the petitioner has questioned the validity of the impugned order on the following grounds:-

(i) That the learned Munsiff had no jurisdiction vested in him by law to take up the hearing of the case on 20-5-1974 inasmuch as the case was never fixed for hearing on 20-5-1974 and therefore the learned Munsiff was bound to adjourn the case to some other date for hearing.

(2) That the application under Or.9 R.13 C.P.C. was apparently barred by limitation and, as such, the learned Munsiff assumed jurisdiction not vested in him by law in taking up and disposing of the matter, when apparently and admittedly the application was barred by limitation. He contended that the decree was passed ex parte on 14-11-1972 and the application under O. 9 rule 13 was made on 11-1-1973 and as such the application was beyond the period of limitation and there is nothing on record to show that there was any application made by the opposite party praying for condonation of the delay under any provision of the Indian Limitation Act, 1963.

(3) That in any view of the matter, no revival of the nature could be made by any Civil Court in exercise of its power under Or.9 R.13 of the Civil Procedure Code inasmuch as a Civil Co