IMPORTANT POINTS
Order IX refers to the parties as plaintiffs and defendants, Order IX Rule 9(2) CPC refers to “opposite party”. Same terminology is found in Order IX Rule 14 CPC also. It is clear that the use of the term “opposite party”, instead of referring as plaintiff or defendant is not without any reason. If the term “opposite party” is used with reference to all other parties to the proceeding, another appropriate terminology would have been used. It cannot be said that, term opposite party used therein is without any significance.

JUDGMENT :

Petitioner was the plaintiff in a suit for partition. There were 9 defendants in the suit. Summons were served on all of them. Only defendants 1, 2 and 9 appeared before the trial court and contested the proceedings. Others were declared ex parte. After completion of proceedings, the case was listed for trial to 06.04.2019. On that day, the plaintiff remained absent. Hence the suit was dismissed for default. I.A.No.174 of 2019 to restore the suit was filed under Order IX Rule 9 CPC. Court below ordered notice to be issued to all the respondents, including the respondents who had remained ex parte. Petitioner filed review petition as R.P.No.219 of 2019 before that Court to review the order directing the petitioner/plaintiff to take out steps against the respondents who were ex parte. Court below dismissed the review petition by Ext.P2 order, which is assailed in this original petition.

2. Considering the limited question involved, the O.P(C) itself was heard without ordering notice to the respondents.

3. The contention of the learned counsel for the petitioner was that, the court below ought not have issued notice to the respondents, since in so far as it related to the defendants who remained ex parte, suit was dismissed under Order IX Rule 3 CPC and the dismissal of suit in relation to them can be set aside invoking Order IX Rule 4 CPC. It was contended that, under Order IX Rule 4 CPC, notice was not liable to be issued to the non-contesting respondents. Court below dismissed the application holding that the contention of the review petitioner that the dismissal of the suit for default was one under Order IX Rule 3 CPC and that the application must be treated as one under Order IX Rule 4 CPC as against exparte defendants was not sustainable and infact, the application was one under Order IX Rule 8 CPC. It was hence held by the court below that the restoration application can only be considered as one filed under Order IX Rule 9 CPC and Order IX Rule 9(2) CPC mandated that notice to the opposite party was essential.

4. Before the court below, learned counsel for the petitioner herein relied on several decisions. Same decisions were relied on before this Court to marshall the contention that the application in so far as it related to the ex parte defendants were concerned was one under Order IX Rule 4 CPC and consequently, notice to them was not necessary. It was contended that, in so far as it related to the contesting respondents, who were defendants Nos.1, 2 and 9, they were entitled to notice in the light of Order 9 Rule 9(2) CPC.

5. Learned counsel relied on the decision in Babu v. Dewan Singh (AIR (ALL) 1952 749) wherein, the Allahabad High Court had considered an identical issue. That was a case wherein the case stood posted for filing a written statement of the defendant. He was absent and the Court ordered that the suit could proceed ex parte against him. The case was adjourned to another day for ex parte evidence. When the suit was called for hearing on the adjourned date, neither the plaintiff nor the defendant were present and hence, the Court dismissed the suit in the absence of the parties. Thereafter, on request of the plaintiff, the suit was restored without issuing notice to the defendant. After restoring the suit, the suit proceeded as if the defendant remained ex parte and ultimately, passed an ex parte decree against him. This decree was sought to be set aside contending that the application for setting aside ex parte was allowed without issuing notice to him.

6. The Allahabad High Court held that the applicant in the above suit was not entitled for a notice since there was no law under which the notice was required to be given to him. It was held that the suit was dismissed under Order IX Rule 3 CPC and was restored under Rule 4 CPC. When Rule does not lay down notice before the suit is restored, notice should not be given to the defendant. It was held that the defendant is entitled to notice only when