The main legal point established in the judgment is the mandatory requirement of serving notice to the opposite party before restoring a suit, as per Order 9 Rule 9 (2) of C.P.C., and the importance of explaining the delay in setting aside an exparte decree, considering the principles of public policy and substantial justice.

The Plaintiffs in the suit are the revision petitioners. The plaintiffs filed the suit in O.S.No.191 of 1998 on the file of the District Munsif, Poonamallee praying for a decree for permanent injunction against the respondents who are the defendants in the suit from transferring and selling the suit land to any third parties while the agreement of sale stated to have been entered by the 1st defendant as a power agent of the 2nd defendant and the plaintiffs dated 211. 1996 is subsisting.

2. The first defendant who is stated to be the power agent of the second defendant has filed written statement on 10.08.2005.

3. The plaintiffs filed application in I.A.No.596 of 1998 for interim injunction which was dismissed on 03.08.1998 by the trial court observing that the suit is not maintainable since the suit is filed based on an agreement for sale. Subsequently, the suit filed by the plaintiffs was dismissed for default on 211. 2002. The plaintiffs have filed an application in I.A.No.2522 of 2002 under Order 9 Rule 9 CPC for restoration of the suit which was dismissed on 211. 2002. In that application, it is seen that the Court has made an endorsement on 012. 2002 which reads as follows:

"Proof affidavit filed, heard and allowed"

Even though the said order states that as proof affidavit has been filed, the learned counsel appearing for the petitioners/plaintiffs would submit that the proof affidavit mentioned by the trail court relates to the proof affidavit filed in the suit by the plaintiffs as evidence and not proof showing service of application in I.A.No.2522 of 2002 in O.S.No.191 of 1998 to the respondents herein who are the defendants.

4. Therefore, it is clear that the learned trial judge while taking up application in I.A.No.2522 of 2002 filed by the plaintiffs for restoration of the suit and to set aside the exparte order dated 211. 2002, on 012. 2002 allowed the same and on the same date received the proof affidavit from the plaintiffs and passed a decree in favour of the plaintiffs. It is relevant to point out that Order 9 Rule 9 which reads as follows:

"O.9,R.9: Decree against plaintiff by default bars fresh suit--

(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may

apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

.(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

.(3) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to applications under this rule."

5. As per the mandatory requirement of Order 9 Rule 9 (2) of C.P.C. any order for restoration of the suit should be passed unless notice of the application has been served on the opposite party. Therefore on the face of it, the order passed by the learned trial Judge in not following the mandatory provisions of Order 9 Rule 9 (2) of

C.P.C. is illegal and it is unfortunate that the learned judge failed to refer to the provisions of law while dealing with an application under Order 9 Rule 9 CPC.

6. Further according to the second respondent, the plaintiffs have filed another suit in O.S.No.211 of 2005 for specific performance of the agreement dated 211. 1996. According to the second respondent herein he has received a notice in the said suit on 08.06.06 and thereafter he has filed an application in I.A.No.1198 of 2006 for condoning the delay of 1273 days in filing the application to set aside the exparte decree passed against the defendants on 012. 2002. According to the applicant in I.A. No.1198 of 2006 who is the second respondent, since the knowledge of the expa