D.S. Mathur, J. - (1.) THIS is a revision Under Section 115 Code of Civil Procedure by Ratan Chand Gulati, Defendant, against the order dated 28 -11 -1964 of Havali Munsif, Saharanpur, allowing the Plaintiff's application Under Order IX, Rule 9 Code of Civil Procedure on payment of Rs. 10/ - as costs.
(2.) THE material facts of the case are that issues in the suit were struck on 16 -3 -1964 when 19 -5 -1964 was fixed for final hearing, that is, for the recording of the evidence of the parties. On that date the Plaintiffs counsel moved an application for adjournment and when the application was rejected, he reported 'no instructions'. Thereupon the Munsif dismissed the suit. The Plaintiff, Brij Bhushan Lal, then moved an application Under Order IX, Rule 9 Code of Civil Procedure for setting aside the order of dismissal and for restoration of the suit. The order of dismissal was deemed to have been passed Under Order IX, Code of Civil Procedure and not Under Order XVII, Rule 3 Code of Civil Procedure and the Munsif held under order dated 31 -10 -1964 that the restoration application Under Order IX, Rule 9, Code of Civil Procedure was maintainable. The restoration application was eventually allowed under order dated 28 -11 -1964 and the suit was restored subject to payment of Rs. 10/ - as costs by 7 -12 -1964. The learned Advocate for the Plaintiff -opposite party has raised a preliminary objection to the maintainability of the revision. It is contended that when the Defendant Applicant submitted to the order dated 31 -10 -1964, he could not later reagitate the question of the maintainability of the restoration application. No one can claim, as a matter of right, that the High Court must exercise the revisional jurisdiction Under Section 115 Code of Civil Procedure. Even when there exists some defect in the exercise of jurisdiction, the High Court may refuse to modify the order of the subordinate court if it appears that no injustice has been done or the setting aside of the order shall bring on record an illegal order. It is also a matter of common knowledge that the High Court is reluctant to interfere Under Section 115 Code of Civil Procedure where only an interlocutory order has been passed and the matter has not been finally decided. In the past the re -visional jurisdiction was not exercised unless the case had been finally decided and in pursuance of these decisions the order dated 31 -10 -1964 of the Munsif could not be challenged in revision. However, after a Supreme Court decision a more liberal view is taken and the revisional jurisdiction is some -times exercised in cases where a writ of certiorari could be issued. In other words, the Defendant did not rightly challenge in revision the interlocutory order dated 31 -10 -1964.
(3.) THE material point for consideration is whether the words "on any day to which the hearing of the suit is adjourned" used in the first part of Order XVII, Rule 2, Code of Civil Procedure include the first date of final hearing, that is, for recording of evidence, fixed after the framing of the issues: if so, by virtue of the Explanation to this rule, added by the Allahabad High Court, a party represented in Court by an agent or pleader, though engaged only for the purpose of making an application, shall be deemed to be present and not to have failed to appear and hence any decree passed shall not be in default or ex parte and no restoration application Under Order IX, shall be maintainable.;