Notice to the defendants is mandatory in applications for restoration under O. 9, R. 4, C. P. C., except in certain cases where the defendant has not appeared or has not filed any defense.

S. C. MOHAPATRA, J.

( 1 ) DEFENDANTS are the petitioners in this civil revision against an order restoring the suit which was dismissed for default without notice to the petitioners. In spite of valid service of notice, plaintiff-opposite party has not entered appearance in this civil revision.

( 2 ) THE suit was for title and possession which was being contested by the defendants who filed a written statement denying the plaintiff's assertion. It was posted for hearing to 5-4-1983 on which date both the parties applied for adjournment. Both the applications were rejected and the plaintiff not being ready for hearing, the suit was dismissed for default. On 26-4-1983, the application for restoration of the suit was filed accompanied by a medical certificate. The matter was posted for hearing to 12-5-1983. That day an affidavit by the son of the plaintiff was filed in support of her absence indicating therein that the plaintiff was ill. Trial Court having restored the suit believing the ground of illness, this civil revision has been filed.

( 3 ) THERE is no dispute that the application for restoration was under O. 9, R. 4, C. P. C. Mr. K. N. Sinha, the learned counsel for the petitioners, submitted that even in respect of such applications notice to the defendants is mandatory. He relied upon the decision reported in (1973) 39 Cut LT 264 (Laxminarayan Agarwala v. Lachman Prasad Agarwala) in support of his contention. This decision fully supports the contention of Mr. Sinha. For rendering this decision reliance was placed on a Division Bench decision reported in ILR (1949) 1 Cut 572 (Ratnakar Ray v. Choudhury Baishnab Charan Patra ). In the Division Bench decision defendants filed written statements in different sets. Defendant Nos. 1 and 2 filed a written statement. Defendant No. 3 filed one written statement and defendant Nos. 4 to 12 filed another written statement. On the date of hearing defendant Nos. 4 to 12 and the plaintiffs filed applications for adjournment. Both the applications being rejected defendant Nos. 4 to 12 filed the hazira of their witnesses, thus indicating their readiness to take part in hearing. Plaintiffs not having become ready, the suit was dismissed for default. An application for restoration was filed under O. 9, R. 9, C. P. C. in which all the defendants were made parties. Notice was served on defendant Nos. 4 to 12. No notice was served on the other defendants. After hearing, the suit having been restored, defendants 4 to 12 filed a civil revision. While considering the matter, the Division Bench held that defendant Nos. 1 to 3 were not set ex parte and were not called at the time of hearing. Even without witnesses on their behalf, they could have taken part in the proceeding. It was held :". . . . . . . UNDER the circumstances and on the facts it is not clear that the order of dismissal as against these defendants can be taken to be one under Order IX, Rule 3,. . . . "after the aforesaid finding, the Division Bench considered academically and observed :". . . . . . . . THERE may be a case in which defendant has not at all appeared or having appeared has not filed any defence. In such cases it is quite possible that the Court, in its discretion, may say that no notice is necessary to be served upon him in the matter of restoration, as he must be served again after the suit is restored to its file. . . . . . "so observing, the Division Bench further observed that in cases where the defendant has entered contest and has put the plaintiff to prove his case, a valuable right arises in his favour on dismissal of the suit and he should not be deprived of that right without being heard. The Division Bench directed the restoration petition to be reheard after notice.

( 4 ) THE decision reported in ILR (1949) 1 Cut 572 (supra) was considered in a decision reported in ILR (1966) Cut 396 (Prahlad Prusty v. Sheikh Abdul Raheman) where both the parties filed applications for adjournment and they being reject