Maintainability of th e revision petition.

This revision arises out of the order passed in I.ANo.2075 of 1986 in I.A.No.1404 1982 in O.S.No.11 of 1973. The suit O.S.No.11 of 1973 was dismissed for I.A.No.1404 of 1982 was filed under O.9, Rule 9 of C.P.C., to restore the suit. application was also dismissed for default. Hence I.ANo.1404 of 1982. This application also dismissed for default. In the order passed in I.ANo.2075 of 1986 dated 25.8.1987 stated as under:

“Petition filed under O.9, Rule 9 and Sec.151, C.P.C., to restore the I.ANo.1404 of which was dismissed for default on 2.12.1986 Counter not filed. The petitioner and petitioner’s counsel called absent at 10.30 a.m. The Petition is dismissed for default.

2. It is against this order, the present revision has been preferred defendant/petitioner. The learned counsel appearing for the petitioner herein submits Application No.2075 of 1986 was filed with an affidavit disclosing all the material show as to why the petitioner was unable to be present on the date of hearing. counter was filed by the other side. Again It was contended that the above said petition dismissed even at the threshold at 10.30 a.m. inspite of the fact that a representation made on behalf of the petitioner by another advocate by name Arunachalam. therefore pleaded, the lower court was not correct in dismissing the I.A.No.2075 of 1986, default.

3. On the other hand, the learned counsel appearing for the respondent submitted that against the order passed in an application filed under O.9. Rule 9 only an appeal will lie revision will not lie. The learned counsel further contended that even on merits the petitioner has not made out a case for the restoration of I.ANo.2075 of 1986. It was further pleaded that the lower court was correct in dismissing 1.A.No.2075 of 1986 for default.

4. I have heard the rival submissions. The fact remains that the suit was dismissed default I.ANo.1404 of 1982 was filed to restore the same and that was also dismissed default on 2.12.1986. In order to restore I.A.No.1404 of 1982 I.ANo.2075 of 1986 was and that was also dismissed for default. It is against that order the present revision has preferred by the defendant petitioner. In support of the above said application an affidavit was filed by the petitioner. Wherein the petitioner has given various reasons for his absence on the date of hearing. A third party affidavit, was also filed. According to third affidavit, when the matter was called at 10.30 a.m. representation was made on behalf the petitioner by another advocate. It also remains to be seen that the petition dismissed at the threshold at 10.30 a.m. on that particular day. The respondent herein not filed any counter denying the allegations made in the affidavit filed in support I.A.No.2075 of 1976. Therefore on merits the petitioner herein made out a case restoration of I.A.No.2075 of 1986. By way of answer to the ground raised by the counsel the respondent, whether a revision will lie against the order passed in I.A.No.2075 of the learned counsel appearing for the petitioner relied upon a full bench decision of Madhya Pradesh High Court, in the case of Nathu Prasad v. Singhai Kapurchand, A.I.R. 1976 I36, wherein, while considering this aspect, it was held as under: “ When an application, (A) under O.9, Rule 9, C.P.C., for restoration of the suit is rejected an application (B) is made for restoration of the application (A) although such application O.9, Rule 9 read with Sec.151, C.P.C., yet, the order rejecting the application, (B) does fall within O.43, Rule 1(c) inasmuch as the application (B) is not” for an order to set the dismissal of the suit “ it is for an order to set aside dismissal of the application (A). Therefore the contention raised by the learned counsel appearing for the petitioner revision is competent, is fully supported by the above said Full Bench decision of the Madhya Pradesh High Court. Further in the case of Doma Choudhary and others v. Ram Natesh and others,A.I.R. 1959 Patn