Sudhindra Mohan Guha, J. - (1.) The tenant/O.P. filed an application under Order 9 Rule 13 C.P. Code for setting aside the exparte decree passed by the petitioner in Ejectment Suit No. 1193 of 1978 in the Court of the City Civil Court at Calcutta, Bench No. 11. On 21.2 81 this application was dismissed for default. On that very day the applicant filed a petition under section 151 of the Civil Procedure Code for restoration of the application under Order 9 Rule 13 C.P. "Code which was numbered as Misc. Case No. 574 of 1980. During the pendency of this application the petitioner came up with a petition for amendment by way of treating the petition under section 151 as one under Order 9 Rule 9 C.P. Code. This application is annexure 'C In paragraph 4 of this petition it is stated that in the cause title and heading of the application there is written as "An application under sec. 151 of the Civil Procedure Code" which shall he deleted Jhomlrom and in that place and stead, of the words will be Inserted and/or written therein as "an application under Order 9 Rule 9 of the Civil Procedure Code." Learned Judge with reference to the decision in the case of Hazi Rustam Ali v. Emmamnuddin Khan & Ors. reported in AIR 1981 Cal. 81 allowed the application for amendment or in other words the original application under section 151 was treated as one under Order 9. Rule 9 C P. Code.
(2.) It is against this order, the landlord has come up to this Court in revision. Mr. Sudhis Dasgupta, learned Advocate for the petitioner, contends that an application under Order 9 Rule 9 C.P. Code being barred by limitation on the date of filing of the application for amendment the learned Judge had no jurisdiction to allow the amendment, which converted the application under section 151 of the Civil Procedure Code into a proceeding under Order 9 Rule 9 CP Code. It is further contended that the learned Judge failed to appreciate that the proposed amendment will take away valuable right accrued to the petitioner by the law of limitation.
(3.) In the case reported in AIR 1981 Cal. 81 referred to by the learned Judge it is held that where a suit was decreed exparte, and an application under Order 9 Rule 13 for restoration of the suit was also dismissed for default, in view of the amended provision of section 141 two alternative remedies were available to the applicant. He could file an application under Order 9 Rule 9 read with section 141 for the restoration of the application dismissed for default or an appeal under Order; 43 Rule 1(C). As the Code provided for alternative remedy, remedy under section 151 was not available. Possibly, this decision led the applicant to convert the application under sec. 151 CP Code into one under Order 9 Rule 9 CP Code.;