Mithan Lal, J. - (1.) This civil revision filed by the defendant arises out of an order of restoration passed by the Second Additional Civil Judge, Dehra Dun, under the following circumstances : The suit was dismissed for the plaintiff's default in the forenoon of 22-6-1959. Immediately after the order was signed [he counsel for the plaintiff entered the courtroom and within a few minutes made an application for restoration of the suit under Order 9, Rule 9, C. P. C. The Court passed an order "Let a copy of the application be given to the defendants' counsel and the case be put up for orders after lunch." On the copy of the application served on the defendants' counsel they noted that they had no instructions. The learned Second Additional Civil Judge finding the grounds sufficient set aside the order of dismissal on that very day and restored the suit. It is against this order that the present revision has been filed.
(2.) The only point which has been contended in this case by Sri S. N. Misra, learned advocate for the applicant, is that the Court below had no jurisdiction to set aside the order of dismissal and restore the suit without notice to the applicant and that the counsel for the applicant could not be deemed to have continued to act after the suit had been dismissed for default. The submission is that the notice in such a case should have been sent to all the defendants and mere service of the notice on the counsel or information to the counsel for the defendants was not sufficient compliance with the provisions of Order 9, Rule 9 (2). The opposite parties are unrepresented and so the Court had, not had the advantage of any assistance from the other side. The contention of the learned counsel for the applicant has no force in view of the provisions of law.
(3.) Order 9, Rule 9, lays down as follows: "(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." 3-A. The above provision will show that the requirements of Rule 9 for restoration of a suit dismissed for default of the plaintiff are as follows: (1) The plaintiff must apply to the Court to set aside the order of dismissal. (2) He must satisfy the Court that there was sufficient cause for non-appearance when the suit was called for hearing, and (3) The Court must serve a notice of the application on the opposite party. Any order of restoration without compliance with any of the above three provisions would be without jurisdiction and would not be a proper order. In this case the plaintiff did make an application and the Court also found that the reason for the absence of the plaintiff was sufficient and so there was compliance with the first two requirements of the rule. The complaint of the defendants is that there was no compliance with requirement 3 above, according to which a notice should have been sent to all the defendants personally and the suit could not be restored without any such notice. In other words the contention is that there was no sufficient compliance with the provisions of Rule 9 (2). The question is whether Sub-rule (2) requires that a notice must go personally to the defendants and whether a notice given to the counsel is not sufficient.;