Decided on August 10,1979



N.H.BHATT - (1.) This is a petition by the petitioner being aggrieved by the order passed by the learned City Civil Court Judge in Misc. Application No. 500 of 1978 on his file. This application was dismissed by the learned Judge for default on 28-3-79. An application Ex 12 was given by the petitioners advocate that very day requesting the learned Judge to restore that Misc. Application No. 500 of 1978 on the ground that he could not attend when the matter was called out because of the misunderstanding prevailing in his mind that the matter would be posted for hearing only after the record was called for and that it had escaped his notice that the Misc. Application No. 500/78 was already placed on the Board. The learned Judge of the 9th Court was pleased to reject that application because of the justifiable annoyance felt by the learned Judge unto the petitioner who had time and again allowed his matters to be dismissed. As explained by the learned Judge in paragraph 4 of his judgment this Misc. Application No. 500 of 1978 was for restoration of his earlier application filed by the petitioner under Order 9 Rule 13 of the Code. In other words there was an ex-Parte decree which was sought to be set aside by an application under Order 9 Rule 13 of the Code which application was dismissed and so the Misc. Application No. 503 of 1978 was filed and this Misc. Application No. 500 having been dismissed for default of appearance that application Ex. 12 was filed in the very proceedings.
(2.) . Despite our annoyance unto the behaviour and conduct of the litigants we are expected to deal with the matter on hand in its own merits. The only thing that the learned Judge was expected to look to was whether the application Ex. 12 which was given on the very day of the dismissal was disclosing any sufficient cause or not. The advocates statement is there in the application Ex. 12 and even the learned Judge does not seem to be doubting that statement. Were it so he should not have allowed his judgment to be swayed by the alleged past bad conduct of the petitioner. As far as the application Ex. 12 is concerned it was required to be allowed and is hereby allowed and Misc. Application No. 500/78 is restored to file.
(3.) . Mr. Joshi the learned advocate for the respondent in this connection invited my attention to my judgment in the case of DIPCHAND PYARELAL V. THAKKAR HASMUKHLAL KESHAVLAL 20 G. L. R. 403. In that case I had held that once an application under Order 9 Rule 9 was dismissed the second application filed for restoration of that earlier application would not lie. That was a case that had arisen prior to the insertion of the explanation in sec. 141 of the Code. In view of the amendment effected in the year 1976 the provisions of Order 9 Rule 9 will be effected even to applications under Order 9 Rule 9. The law enunciated in Dipachands case (supra) is now no longer good law. On the above short ground that application is allowed. Rule is accordingly made absolute but the petitioner to pay Rs. 60/as costs to the respondent herein. Application allowed.;

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