S.P.MITRA, J. - (1.) THIS is an application for review under the provisions of Order 47 Rule 1 of the Code of Civil Procedure. On 13th March, 1951 the plaintiff instituted this suit, inter alia, for the recovery of possession of the land at premises No. 12/1/1A, Khangraputty Street, in Calcutta. The suit appeared in the appropriate Prospective List C on the 17th November, 1956. Mr. M. R. Bose, a Solicitor of this Court was appearing on behalf of the defendants but in the Prospective List the name of Messrs. Mitter and Bural appeared as the defendant's attorneys. On the 12th February, 1952 the suit appeared in my Warning List. Here, again, Messrs. Milter and Bural were stated to be the defendant's solicitors. The suit was placed in my Peremptory List on the 14th February 1958. The same mistake was committed in the Peremptory List as well. On the 14th February, 1958 the suit was passed over twice and on the third occasion an ex parte decree in favour of the plaintiffs was made by me. On the 9th January 1959 Mr. M. R. Bose, Solicitor for the defendants, wrote to the plaintiffs Solicitor asking for inspection of the document disclosed by the plaintiffs. The plaintiff's Solicitor replied that an ex parte decree had already been passed on the 14th February, 1958. On January 12, 1959 the defendants' Solicitor furnished requisition to the Registrar for inspection of the records of this suit. On the 21st January, 1959 inspection was given to him. A Notice of Motion was taken out by the defendant's Solicitor on the 28th January, 1959 for setting aside the ex parte decree. The application was heard by me on the 3rd March 1959 when I dismissed the same on the ground of limitation. On the 19th March 1959 the defendant's Solicitor obtained a certified copy of the decree. He took out a Notice of Motion for condonation of the delay in making an application for review and leave to file memorandum of reviewon the 25th March 1959. I heard this application on the 2nd June 1959 and without prejudice to the respondent's contention that an application for review did not lie. I made an order, inter alia, condoning the delay and granting leave to the defendants to file their memorandum of review on or before the 6th June 1959. A Rule was issued on the 10th June 1959 calling upon the plaintiffs to show cause why the application for review should not be granted and the suit set down for re -hearing. The Rule was made returnable four weeks from date.
(2.) AT the hearing of this application Mr. Banerjee on behalf of the petitioners has urged that the judgment and decree passed by me on the 14th February 1958 should be reviewed on account of mistake or error apparent on the face of the record or on grounds analogous thereto inasmuch as in the Warning List the name of Messrs. Mitter and Bural was printed or published as attorneys for the defendants and the name of Mr. M. R. Bose, the defendant's solicitor, was not at all printed or published in my Peremptory List of the 14th February, 1958. A decree may be reviewed under Order 47, Rule 1 either on the ground of discovery of new and important matter or evidence or on account of some mistake or error apparent on the face of the record or 'for any other sufficient reason'. In Chhajju Ram v. Neki, 49 Ind App 144 : AIR 1922 PC 112. their Lordships of the Judicial Committee construed the expression 'any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. The same view was taken by the Privy Council in Bisheshwar Pratap v. Parath Nath . This view was also adopted in Hari Shankar v. Anath Nath, AIR 1949 PC 106 at pp. 110 and 111 and in M. M. B. Catholics v. M. B. Athanas us, AIR 1954 SC 526 at p. 538. Learned counsel for the petitioners has submitted to me that the mistake or error in the Prospective List, the Warning List and the Peremptory List referred to above is at least analogous to mistake or error apparent on the face of the record, and as such the ex parte decree should be set aside.
(3.) IN K. K. S. A. L. Firm v. Maung Kya Nyun, AIR 1928 Rang 31, it was held that the phrase 'ejusdem generis' is more restricted than the word 'analogous'. In Chokkalingam v. Lakshmanan, AIR 1920 Mad 633 it was observed that 'if a party can bring an application within the provisions of Order 47, Rule 1, Civil Procedure Code, the fact that he could also have applied under Order 9 Rule 13 cannot be treated as a bar to it' and that 'a party's right of appeal is not affected by the fact that he had a right under Order 9 Rule 13 also which he did not take advantage of and it is open to the Appellate Court to set aside the ex parte decree and direct a new trial on grounds falling within Order 9 Rule 13, Civil Procedure Code. If an appeal can be allowed in that manner we see no reason to suppose why a review cannot be allowed on similar grounds.' In Chet Narain v. Rampal, 16 Cal WN 643 it was held that the fact that the defendants against whom an ex parte decree was passed, did not apply within time under Order 9 Rule 13 of the Code of Civil Procedure for a revival of the case is no bar to his applying for a review of the decree under Order 47 Rule 1 of the Code on the ground that he was prevented by sufficient cause from appearing at the hearing. These cases were decided before Chajju Ram's case, 49 Ind App 144 : AIR 1922 PC 112. was considered by the Judicial Committee. Learned Counsel for the respondents has argued that after Chajju Ram's case 49 Ind App 144 : AIR 1922 PC 112. a sufficient cause for non -appearance cannot be a ground for an application under Order 47 Rule 1. In Tarit Bhusan v. Sridhar Salagram : AIR1942Cal99 there is an observation of Nasim All, J. that when a suit is dismissed under Order 9 Rule 8 of the Code, the suit can be restored under Order 9 Rule 9 if there was a sufficient cause for non -appearance of the plaintiff. Where the suit is dismissed under Rule 8 for default of the plaintiff owing to gross want of care and diligence on his part the suit cannot be restored under Rule 9 and in view of the decision of the Judicial Committee in Chajju Ram's case 49 Ind App 144 : AIR 1922 PC 112. it is doubtful whether the order of dismissal can be set aside by an application for review under Order 47 Rule 1 in the case of Mahadeo v Lakshmi Narayan, AIR 1925 Bom 521 it was held following the decision in Chhaju Ram's case 49 Ind App 144 : AIR 1922 PC 112. that the plaintiff whose suit had been dismissed for want of appearance under Order 9 Rule 8 has no remedy by way ot review. The fact that the applicant was absent when the suit was called on would not be a ground for review specified in Order 47 Rule 1 nor could it be a ground analogous to any of those specified in the rule. This decision of the Bombay High Court was explained in Bhairabendra v. Punyendra, AIR 1950 Assam 47 at p 48. It was observed in this case that it could not be held as a general rule that an order purporting to have been passed under Order 9 Rule 8 was not at an subject to review No such proposition was laid down by their Lordships of the Bombay High Court. The view that was taken was that the cause for non -appearance would not be a sufficient reason within the meaning of Order 47 Rule 1 nor could it be described as discovery of a new and important matter or evidence nor an error apparent on the face of the record in this case before the Assam High Court the respondent applied under Section 4 Bengal Regulation V, 1799 praying that security be taken from the appellant against whom a title suit was pending. On the 23rd November 1946 objections against the petition were put in by the appellant. The presiding officer of the Court not being present on that date his Sheristadar directed that the case be put up on the 14th December in the presence of the parties pleaders for orders. This direction was not communicated to the respondent who was not present on that day On the 14th December the respondent and his counsel were absent. The petition was dismissed under Order 9 Rule 8. It was held that the Sheristadar's direction not being the order of the Judge had no binding force. The respondent was therefore, under no obligation to appear on the 14th December when the petition wag dismissed for default, and, therefore, the petition could not be dismissed for default it was held further that the order of dismissal for default being patently Illegal, the illegality may well be regarded as mistake or error apparent on the face of the record and, therefore, could be reviewed Even if the error be not regarded as apparent it could certainly be a sufficient reason for review, for, the ground is undoubtedly analogous to a mistake or error apparent on the face of the record it was observed however following the Bombay derision that evidence hearing on the cause for non -appearance could not form a valid ground for review and the order could be reviewed only on the basis indicated above.;