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IN THE HIGH COURT OF ALLAHABAD
AMITABH BANERJEE, R. P. SINGH
LONG LIFE CARPET INDUSTRIES, GAHARPUR - Appellant
Versus
KESAR JAHAN - Respondents
F. A. F. O. 438 Of 1987
Decided On : 10/16/1987
RESTORATION OF SUIT - NOTICE TO DEFENDANT - NECESSITY - CPC, O. 9, R. 4 - INTERPRETATION - EQUITABLE PRINCIPLES - RIGHT TO BE HEARD.
Fact of the Case:
Plaintiff filed a suit against the defendant for recovery of money. The suit was dismissed for default of both parties. Plaintiff applied for restoration of the suit under O. 9, R. 4 CPC, which was allowed without notice to the defendant. The suit was then decreed ex parte against the defendant. Defendant applied to set aside the ex parte decree, which was dismissed by the trial court.
Finding of the Court:
The court held that it was necessary to serve notice on the defendant of the date of hearing of the case after restoration. The court relied on the principle of equity and fairness, and held that it was not conceivable that the defendant could come to know of the date fixed by the court for hearing unless he was given notice.
Issues: Whether it was necessary to serve notice on the defendant of the date of hearing of the case after restoration.
Ratio Decidendi: The court held that it was necessary to serve notice on the defendant of the date of hearing of the case after restoration. The court relied on the principle of equity and fairness, and held that it was not conceivable that the defendant could come to know of the date fixed by the court for hearing unless he was given notice.
Final Decision: The court allowed the appeal, set aside the order of the trial court, and set aside the ex parte decree. The suit was ordered to proceed after serving a proper notice of the next date fixed in the case to the parties in accordance with law.
( 1 ) THIS First Appeal From Order is against an order dated 12th May, 1987 passed by the Civil Judge, Gyanpur, Varanasi, rejecting the application moved by the appellant for setting aside the ex parte decree dated 13th January, 1987.
( 2 ) THE brief facts of the case are that the plaintiff-respondent filed Original Suit No. 72 of 1986 against the defendant-appellant for recovery of Rs. 72,250/ -. A written statement was filed by the appellants on 20-8-86. On 22-10-86, however, the suit was dismissed under O. 9, R. 3, CPC as neither party appeared when the suit was called for hearing. The same day, however, the plaintiff-respondent filed an application under O. 9, R. 4, CPC and the Civil Judge without issue of any notice to the appellants and relying on the affidavit filed by the plaintiff-respondent restored the suit to file on 22-12-86 and fixed 13-1-87 for hearing. On this date, i. e. 13-1-87, the defendants had no notice. The Court passed an ex parte decree decreeing the suit after accepting the ex parte evidence of the plaintiff. The grievance of the defendant-appellants is that after the dismissal of the suit of 22-10-86 under O. 9, R. 3 the defendants came to know the same day that the suit had been dismissed for default and thereafter they were not aware of any application for restoration being filed by the respondent or that any date having fixed for appearance of the parties for final disposal of the case. On 22nd April, 1987 the appellants made inquiries about the case when they came to know that the suit had been restored to its original number without any notice to them and also an ex parte decree was passed on 13th January, 1987 in favour of the respondent without issue of any notice to the appellants. Then, the appellants, the very next day i. e. , on 23rd April, 1987 moved an application for setting aside the ex parte decree dated 13th January, 1987 explaining the reasons for the non-appearance on 13-1-87. The appellants had filed an affidavit saying that they had no knowledge whatsoever of the case until 22-4-87. The learned Civil Judge, however, holding that it was not necessary to send notices to the defendants of the date fixed for hearing i. e. 13-1-87 after the application was allowed under O. 9, R. 4, CPC restoring the suit to its original number and hence the ex parte decree passed on 13-1-87 without any notice of the date to the appellants was validly passed and consequently dismissed the application filed by the appellants for setting aside the ex parte decree. The defendants feeling aggrieved, have come up in appeal against the said order dated 12-5-87 passed by the learned Civil Judge refusing to set aside the ex parte decree.
( 3 ) THE sole point for consideration in this case is whether the learned Civil Judge was right in holding that it was not necessary to serve notices on the defendants of the date of hearing of the case after restoration. The dismissal under O. 9, R. 3, CPC was in absence of both the parties. Thereafter when the application for restoration was made by the plaintiff under O. 9, R. 4, CPC, at that stage the defendants may not claim issue of notice to them as of right but when the Court restored the suit to file on 22-12-86 on the application filed by theplaintiff and fixed another date of hearing of the case, it does not stand to reason that the defendants should not be given the notices of the date of hearing of the date fixed in the suit. In fact, in absence of any notice being issued to the defendants of the date fixed in the case after restoration, they could have no means of knowledge about the date fixed in the case or that even the application for restoration had been allowed. When the defendant-appellants came to know on inquiry on 22-10-86 that the suit had been dismissed under O. 9, R. 3 for default, they could not anticipate when an application for restoration would be made and allowed. If such an application has been moved and allowed, it appears to
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