In certain cases, service of notice on the defendant in a proceeding under Order 9, Rule 4, C. P. C. is mandatory. In such cases, the defendant must be permitted to contest the restoration application.

G. K. MISRA, J.

( 1 ) AFTER a chequered career the suit had been fixed to 26-3-1965 for hearing. Order passed on that date was to the effect: plaintiff files a petition for time to adjourn the suit on the ground pf illness. Defendant also files a petition to adjourn the suit. The time petitions are rejected as the grounds are baseless. Parties to come ready at once. Later both parties absent on call. Hence the suit is dismissed for default without costs. Plaintiff filed an application under Order 9, Rule 4, C. P. C. It was registered as Misc. Case No. 102 of 1965. On 27-4-1965 the petitioner (plaintiff) filed haziras and the opposite party (defendant) filed an objection. Petitioner and the advocate were present. The opposite party wanted to take part in the proceeding. On the objection of the plaintiff, defendant was not allowed to take part. The Misc. case was allowed and the suit was restored to file. Against this order, the Civil Revision has been filed.

( 2 ) ORDER 9, Rule 3, C. P. C. lays down that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. Order 9, Rule 4 enacts that where a suit is dismissed under Rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside and if he satisfies the Court that there was sufficient cause for his not paying the Court fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. If the suit is dismissed under Order 9, Rule 8. C. P. C. where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, order 9, Rule 9 prescribes that the plaintiff may apply for an order to set the dismissal aside. Order 9, Rule 9, Sub-rule (2) lays down that no order shall be made under this rule unless notice of application has been served on the opposite party. The learned Munsif examined all the provisions and was of opinion that as Order 9, rule 9 (2) clearly makes provision for service of the notice of the application for restoration on the opposite party, defendant has no right to contest the proceeding under Order 9, Rule 4 which makes no provision for service of notice of the application on the opposite party.

( 3 ) THUS two important questions arise for consideration: (i) Whether service of notice on the defendant in a proceeding under order 9, Rule 4, C. p. C. is mandatory; and (ii) Even if the service is not mandatory, whether the defendant can be debarred from contesting the proceeding when he is present in Court and wants to contest the same.

( 4 ) ORDER 9, Rules 9 and 14 make it clear that service of notice on the opposite party is mandatory. Rule 14 says that no decree shall be set aside on an application under Order 9, Rule 13, unless notice thereof has been served on the opposite party. Order 9, Rule 4 does not make similar provision. Absence of corresponding provision in Order 9, Rule 4 does not necessarily mean that in no case service of notice is mandatory. It can, however, be said generally that notice on the opposite party need not be served in a proceeding under Order 9, Rule 4. In certain cases, service of such notice is essential. In ILR 1949-1 Cut 572: (AIR 1951 Orissa 266), Ratnakar Ray v. Kulamoni Ray, a Bench of this Court examined this question. Ray, C. J. observed as follows:

"if the suit had not been set down ex parte against them and if they were going to be bound by the order of restoration that had been passed, I do not understand how any order affecting them could be passed in their absence. Some support is prayed in aid from the absence of a provision in the terms or the like of Sub-rule (2) of Rule (9) of the order from Rule 4. But that does not necessarily mean that in any default