M.C. JAIN C.J.—The learned Single Judge by his order dated 13.12,89 has referred the following two questions to be answered by a larger bench:-

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2. Before considering the above referred questions, it would be appropriate to notice few relevant facts. The non-petitioner Manak Chand instituted a suit for arrears of rent and ejectment against the defendant petitioner Shishupal, on 9th May 1980 in the court of Munsif Beawar. The defendant appeared and filed his written statement on 15.12.80. Thereafter issues were framed. On 2.01.1985 the defendant and his counsel were not present so an exparte order was passed. On 11.9.85, the plaintiff and his counsel were also not present and so the suit was dismissed in default. An application for restoration was filed by the plaintiff and the suit was restored to its original number on 11.10.85 without notice of the restoration application to the defendant. The suit was ultimately decreed on 17.2.86 and exparte decree was passed. An application for setting aside the exparte decree was presented by the defendant on 20.05.1986. That application was rejected on 29.07.1986 by the Munsif, Beawar. The defendant preferred an appeal which was heard by the Additional District Judge Beawar. The appeal was also dismissed by the Additional District Judge on 1st Feb. , 1989. Dissatisfied with the order of the learned Additional District Judge, the present revision was preferred by the defendant and during the course of arguments, the learned Single Judge framed the aforesaid two questions and referred the questions to the larger bench.

3. We have heard Shri Kejriwal, the learned counsel for the petitioner and Shri G.P. Kaushik, the learned counsel for the plaintiff-non-petitioner.

4. The learned counsel for the parties agree that so far as the first question is concerned, it is not necessary to decide as it would be an academic question. According to them, in the present case, after restoration of the suit, for whatever reason, the suit has been decreed exparte and the matter has arisen on the application for setting aside of the exparte decree. The question that has been framed relates to the matter as to whether the suit when dismissed on account of default of the parties or on account of non-prosecution or on account of want of evidence, can be considered to have been dismissed in default. So far the present case is concerned, the suit has already been restored and thereafter ex-parte decree has been passed, so we agree with the learned counsel for the parties that it would be an academic exercises we do not think it necessary to decide question No. 1.

5. Question No.2 is most material and difference of opinion has been noticed by the learned Single Judge in the authorities referred to in the referring order. Admittedly, in the present case after restoring the suit, no hearing of the suit was given to the defendant-petitioner and the proceedings continued exparte after restoration of the suit calumniating into the exparte decree so the question is, after restoration of the suit, was it necessary for the court to inform the defendant that the suit has been restored and without such notice, whether the court could proceed against the defendant.

6. Mr. Kejriwal, learned counsel for the petitioner submitted thatthe suit having been dismissed in default once, it was incumbent for the court to have issued notice of the hearing of the suit after restoration of the suit as the defendant cannot be deprived of his valuable right that he could join and participate in the proceedings despite the fact that exparte order has already been passed. So without notice of the hearing of the suit after restoration, the defendants right is

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