Hari Swarup, J. - (1.) THIS revision is directed against a revisional order passed by the District Judge by which he set aside the order passed by the trial court under Order 9, rule 9 of the Code of Civil Procedure. The plaintiffs' suit was dismissed in their absence. They moved an application for restoration of the suit under rule 9 of Order 9 of the Code of Civil Procedure. The trial court, finding that there was sufficient cause for the absence of the plaintiffs, allowed the application and set aside the dismissal of the suit. Against this order a revision was preferred and the District Judge has allowed the revision and dismissed the application for restoration of the suit on the ground that all the defendants had not been impleaded as parties in the application. There were three defendants in the suit. When the application for restoration was moved only one of them was impleaded as a, party. Names of the other two were not mentioned. Subsequently after the period of limitation prescribed for filing such an application was over, an application was moved giving the names of the other two persons. The learned District Judge held that the application could be deemed to be complete not on the date but only on the date when the other two defendants were sought to be impleaded, and as this was done beyond limitation the application was not maintainable. The application was accordingly dismissed as barred by limitation.
(2.) THE error into which the learned District Judge fell was that he thought it was the duty of the plaintiffs to implead the defendants as; parties in the application. The restoration of a suit dismissed in default is a matter between the court and the plaintiff. If the plaintiff satisfies the Court that there was sufficient cause for his nonappearance when the suit was called for hearing the court makes an order setting aside the dismissal of the suit and appoints a date for proceeding with the suit. Rule 9 of Order 9 does not require that the applicant should implead the defendants as parties in the application. 'It is certainly true that the application cannot be allowed without notice to the opposite parties in view of sub -rule (2) of rule 9 of Order 9 of the Civil Procedure Code which runs as under: - - No order shall be made under this rule unless notice of the application has been served on the opposite party. This sub -rule indicates that the restriction is only about the passing of the final order and not about the maintainability of the application. The record of the case contains the names of the parties who are to be served. The plaintiff is required only to move the Court and to show that he had sufficient cause for absence. In Mst. Kalawati v. Pundit Daya Nand : A.I.R. 1937 Alld. 362 a similar view was taken in respect of an application under Order 41, rule 19, Civil procedure Code. It was observed as under: - - There is nothing in the C.P.C. which provides that the application should expressly implead a particular party. Ordinarily it is advisable to mention the names of all persons on whom notices of the application should be served; but if no names are mentioned and the record enables the Court to ascertain the names of persons to whom notice should be given and notice is, in fact, given the application cannot be dismissed merely on the ground that names of some of the respondents were not mentioned in the heading of it and that, therefore, no application can be considered to have been made against such respondents within the period of limitation. Similarly in Dulal Chand v. Atul Krishna Roy and others : A.I.R. 1935 Cal. 506 it was held that it was not necessary to implead persons as parties in the application for setting aside an order dismissing the suit in default. In the present case it is not denied that the notice was issued to all the defendants before the order was passed. In passing the order the trial court had thus not violated the procedure provided in rule 9 of Order 9, Civil Procedure Code for deciding such an application. There was accordingly no error of procedure in the passing of the order. He could set aside the order on finding that the plaintiffs had sufficient cause for being absent.
(3.) LEARNED counsel for the respondents contended that the application could not be allowed as it was not made complete within the limitation prescribed by law. According to him, the date of the impleading of the remaining defendants should be deemed to be the date of presentation of the application. He relied on the provisions of sub -rule (5) of rule 10 or Order 1 of the Code of Civil Procedure and Section 21 of the Limitation Act. Sub -rule (5) of rule 10 of Order 1 runs as under: - - Subject to the provisions of the Indian Limitation Act, 1877, Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of summons. This rule has no applicability to an application for setting aside the order dismissing the suit in default because the proceedings in such a case are not against any person. The character of the proceeding is only of a request to the Court to give another opportunity to the plaintiffs of hearing. No relief is directly sought 'against any person', though impliedly the defendants may be affected. The application cannot, therefore, be deemed to be in the nature of a suit against any person. It is accordingly not mandatory though desirable, to implead any person as a party in an application of this character because it is only request made to the Court for rehearing. Learned counsel for the opposite parties relied on Mohd. Yaqub v. Ram Chandra, A.I.R. 1953 Bhopal 35 in which the Judicial Commissioner held that in a revision it was necessary to implead all the parties to the suit. This case has no applicability because it did not consider the application of the present character in which no relief is sought against any party but only a hearing of the suit is claimed.;