(1.) The plaintiff brought a suit in the Small Cause Court. The suit was dismissed for the plaintiff s default in the presence of the defendant. The plaintiff then made an application under Order IX, Rules 4 and 9, for restoration and re-hearing of the case. On this occasion also there was a default and then the order dismissing this case was made in the presence of the defendant s Pleader. There was again an application made under Order IX, Rule 9, for the re-hearing of the case. The learned Munsif held that Order IX, Rule 9, did not apply and, therefore, dismissed the application.
(2.) It appears that the plaintiff made an application also for treating it as an application for review. On that application also, the learned Judge said such application does not lie." We are unable to see the justification of such orders.
(3.) In the first place, we do not think that Order IX, Rule 9, does not apply; and in arriving at this conclusion, we follow the case of Diljan Mihha Bibi v. Hemanta Kumar Roy 29 Ind. Cas. 395 : 19 C.W.N. 758. There it was held that Order IX, Rule 9, was applicable to a case in which an application for setting aside a sale had been dismissed. The application for setting aside the sale was treated there as an original proceeding. In this case also, in a similar way, the application for the restoration of the case, under Order IX, Rules 4 and 9, may be treated as an original application although no fresh parties are interested in the case The proceeding is initiated by an application which has to be numbered as a separate miscellaneous case and decided upon evidence.