Hon’ble Alok Singh, J.

Present appeal is preferred against the judgment and order dated 07.05.2011, passed by the Additional District Judge, Naintial in Misc. Case No. 5 of 2009, whereby application moved by the defendant appellants herein under Order 9 Rule 13 C.P.C. was rejected.

2. Brief facts of the present case, inter alia, are that O.S. No. 214 of 1990, M/S Belwal Spinning Mills Vs. Kamal Cotton Traders and others was dismissed on 29.09.2001 in the absence of both the parties, i.e. plaintiff and defendant. On the application of the plaintiff moved under Order 9 Rule 4 C.P.C., suit was restored to its original number vide order dated 23.11.2001. Thereafter, suit was decreed ex-parte in the absence of defendant/appellants herein on 21.08.2003. When defendant/appellants herein came to know about the ex-parte decree, an application under Order 9 Rule 13 C.P.C. was moved which was dismissed vide impugned order in the present appeal.

3. I have heard Mr. Sharad Sharma, learned Senior Counsel assisted by Ms. Vandana Singh, learned counsel for the defendant/ appellants and Mr. Sarvesh Agrawal, learned counsel for the respondent/plaintiff.

4. Undisputedly, suit was dismissed for non prosecution in absence of both the parties on 29.09.2001 under Order 9 Rule 3 C.P.C. Undisputedly, on the application of the plaintiff moved under order 9 Rule 4 C.P.C., it was restored to its original number vide order dated 23.11.2001.

5. Perusal of the record reveals that after restoration of the suit under Order 9 Rule 4 C.P.C., no summon or notice was issued to the defendant/appellants herein and suit was ultimately proceeded ex-parte and decreed ex-parte vide judgment and order dated 22.09.2001.

6. If suit is dismissed for non prosecution in the absence of both the parties, of course, ordinarily, notice is not required to be sent to the defendant on the application moved under Order 9 Rule 4 C.P.C. However, after the restoration of the suit under Order 9 Rule 4 C.P.C., notice/ summon is required to be sent to the defendant, otherwise, there would be no occasion for the defendant to come to know about the restoration of the suit which was dismissed in the absence of both the parties. Since no notice was issued after restoration of the suit to the defendant/appellants herein, therefore, it can very well be said that ex-parte judgment and decree was passed without giving proper opportunity to the defendant. If notice/ summon is not served on the defendant, this is one of the valid ground to set aside the ex-parte judgment and decree under Order 9 Rule 13 C.P.C.

7. Consequently, present appeal is allowed. Impugned judgment and order dated 07.05.2011, passed by the Trial Court rejecting the application under Order 9 Rule 13 C.P.C. is hereby set aside. Ex-parte judgment and decree dated 21.08.2003, passed in O.S. No. 214 of 1990 is hereby recalled. Suit is restored to its original number. Parties shall appear before the learned Trial Court on 12th May, 2014. Trial Court, thereafter, shall explore every possibility to decide the suit at its own merit in accordance with law preferably within next six months. However, it would be open to the learned District Judge to transfer the trial of the suit before any competent Civil Judge, Senior Division.

8. No order as to costs.