The main legal point established in the judgment is that the order of restoration must be in accordance with the provisions of Order 9, Rule 9 (2) of the Code, and notice must be served to all the defendants before passing such an order.

RAY C. J.

( 1 ) THIS is a petn. by defts. 4 to 11 for revising an order passed by Munaif of cuttack restoring a suit which had been dismissed under Order 9, Rule 8, C. P. C. The suit was one for specific performance of contract of lease of some waste lands as well as Nijchas lands. The contract had been entered into by defts. 1 to 2, who admittedly are the proprietors. The contract is said to have been entered into on different dates (29-9-44 and 6-2-45) in respect of wastelands and nijchas lands respectively. The defts. l and 2, however, executed a registered permanent lease in respect of the very same lands in favour of deft. 8 on 4-845 The latter about two years after his lease sold his lease-hold interest to defts. 4 to 12 of whom defts 4 to 11 are the petnrs. before us. Admittedly, defts, 4 to 12 were actively contesting the suit. The position in relation to the other defts. is that defts. l to 2 filed and written statement alleging that as the pltf. had failed to pay the promised consideration, they were at liberty to grant the subsequent lease in favour of deft. 3. The deft. 3 filed a written statement opposing the pltfs. " case and asserting the validity of his lease free from equity in favour of any contract alleged by the pltfs. and his right to transfer to the defts. 4 to 12. The clefts. 1 to 3 did not consider it necessary to take any further steps in support of their defence and what course they were likely to take at the hearing of the suit is difficult to speculate. One thing, however, is certain that the Ct. never considered that these defts. had withdrawn from the contest. It appears to be so from the fact, as it is conceded at the Bar, that the Ct. never set down the suit as ex parte against those defts. In law, therefore, anyone of them or all could come and appear at any time in course of the hearing and contest the suit. They might or might not have the necessity for summoning any witnesses or producing any documents. On the date of hearing the pltfs. as well as defts. 4 to 12 filed petns. for adjournments. The Ct. rejected the prayers of both and called upon them to take further steps in the suit. Following this order, defts. 4 to 11 intimated their readiness to go on with their defence and filed Hazira of their witnesses. The pltfs. , however, did not take any further steps. Under the circumstances, the Munsif dismissed the suit under Order 9, Rule 8, C. P. C. Then followed an appln. under Order 9, Rule 9 for restoration of the suit to its orginal file. This petition was registered as Misc. case. no. 24/48. On a date later than it was registered, the 2nd Addl. Munsif, Cuttack, passed this queer and unusual order : "requisites filed. Issue notice on the contesting Opp. Parties 4 to 11 fixing 27-4-48 for return. " overriding the earlier order to issue notice to all opposite parties. According to this order, notices of the petn. for restoration were issued. and served upon defts. 4 to 11. Accordingly, no notices were issued to defts. 1, 2, 8 and 13. The petn. therefore, was heard in presence of those defts. only and was allowed. As against this, the present revn. has been filed.

( 2 ) THE contention of Mr. Mohanti, the learned counsel for the petnrs. , is that the proceeding is illegal and the order invalid, in as much as, as required under Order 9, Rule 9 (2), that no such order of restoration can be made until notices of the appln. had been served on all the opposite parties. Prom the petn. for restoration it appears that all the defts. in the suit had been arraigned as opposite parties. It is difficult to understand how could the learned Munsif at that stage discriminate some of the opposite parties as against the others on the ground that same were contesting and others not. It appears that 4ms Order no. 44 dated 6-4-48 in Misc. Case. No. 24/48, is to the order of the pltfs. but not as required by law we take a serious notice of this sort of order which implies nothing but slackness and negligence on