P.K.Ray, J. - (1.)This application under section 115 of the Code of Civil Procedure has been filed by the plaintiff/petitioner challenging the order dated 17th May, 2002 passed by learned 5th Civil Judge (Senior Division) at Alipore in Miscellaneous Case No. 7 of 2002, arising out of title suit No. 18 of 1991 whereby and whereunder the application dated 1st April 2002 of the plaintiff/petitioner praying recall of the order dated 27th March, 2002 passed in Msic. Case No. 7 of 2002 was rejected. The opposite parties of this revisional application has raised the question of maintainability of this revisional application under section 115 of the Code of Civil Procedure on the ground that the impugned order is an appealable order. Hence, before going into the merit of the matter, this Court heard the parties on issue about maintainability of the revisional application.
(2.)Before dealing with the said question, a factual matrix is required to be dealt with for proper adjudication of the issue. Miscelleneous Case No. 7 of 2002 arose with reference to the application filed by the plaintiff/petitioner praying for setting aside the Order dated 21st September 2001 and thereby restoration of the suit being Title Suit No. 80 of 1991. Thus miscellaneous case was filed in terms of the provision of Order IX rule 9 of the Code of Civil Procedure, 1908; hereinafter refer to as said Code. This Miscellaneous case was dismissed for default by the order dated 27th March, 2002 passed by learned Civil Judge, 5th Court (Senior Division) at Alipore. The plaintiff/petitioner filed an application for recalling the said order on 1st April 2002 which was ultimately rejected on merit by the impugned order dated 17th May, 2002 of this revisional application. Learned Court below disbelieved the ground for non-appearance of the parties on the date as fixed for hearing of Miscelleneous Case No. 7 of 2002.
(3.)Challenging that order, the present revisional application. On issue of maintainability of this application, learned senior advocate Mr. Sudhish Dasgupta for the opposite party, has contended that a proceeding under Order IX is a Miscellaneous proceeding in view of explanation under section 141 of the said Code and in terms of section 141, all the procedure provided in the said Code in regard to suits, should be followed in disposing of all the proceedings under Order IX. It has been argued that once an application under Order IX rule 9 of the said Code is dismissed for default, the party concerned is entitled to file another Miscelleneous Case for restoration of the earlier Miscelleneous Case by filing application under Order IX rule 9, since, the order dismissing earlier Miscelleneous Case for default would be considered as an order passed under Order IX rule 8 or the concerned party has the option to prefer an appeal under Order 43 rule 1(c) of the said Code. Having regard to such legal position, it is submitted by the learned senior advocate Mr. Sudhis Dasgupta that since the impugned order has been passed under the provision of Order 9 rule 9 of the said Code; the revision application is not maintainable in view of the provision of appeal under Order 43 rule 1(c) of the said Code. In support of such argument, learned senior advocate Mr. Sudhis Dasgupta has relied upon the judgments passed in the cases Mst. Nurnahar Bewa & Anr. v. Rabindra Nath Dev & Ors. reported in AIR 1988 Cal 358, a judgment of Special Bench, Dulal Chandra Ojha v. Banamali Guchait & Ors., reported in AIR 1989 Cal 91, passed by learned single Judge of this Court and Hazi Rustam Ali v. Emamnuddin Khan & Ors., reported in AIR 1981 Cal 81, passed by learned single Judge of this Court.
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