Modi, J. - (1.) THIS is an application by the plaintiff respondent Abdul Rashid for rehearing of an appeal and arises under the following circumstances.
(2.) THE plaintiff filed the suit, out of which this application arises, for a declaration that the sale of certain land in front of his house by the Municipal Board, Kotah, was null and void as the said land belonged to the plaintiff. ' THE defendants resisted the suit and their contention was that the land belonged to the Municipality, and, therefore, it had the right to sell it. THE trial court dismissed the suit. THE plaintiff went in appeal to the District Judge, Kotah, who held that the land measuring 18 feet by 4 feet sold to the contesting defendant Rahim Bux belonged to the plaintiff and consequently he gave a declaration that the sale of the said land to the defendant aforesaid was illegal. THE defendants then, came up to this Court in second appeal which came for hearing before a learned single Judge, and the appeal was allowed and the suit was dismissed by a judgment dated the 16th January, 1958. It may be mentioned at this place that before the appeal was so decided, it was dismissed for default of both parties on the 13th August, 1957. An application was then moved by the appellants for restoration of the appeal. This application was allowed by order dated the 30th October, 1957. The case then came up for hearing before the learned single Judge on the 3rd January, 1958. On that date, learned counsel for the appellants Mr. Gafar Ali was present but nobody put in appearance on behalf of the plaintiff respondent who is the petitioner before me. It is contended in these circumstances that before the appeal should have been heard by the learned single Judge, notice must have been issued of the hearing to the plaintiff respondent inasmuch as the appeal had earlier been dismissed for default of both parties by an order of this Court dated the 13th August, 1957. A notice of the present application has been duly served on the defendants appellants but they have not appeared. On a careful consideration of the contention raised on behalf of the present petitioner, I have come to the conclusion that it has force. The appeal when it had earlier come before the learned Judge was obviously dismissed for default of both parties. This dismissal was made under O. 41, r. 17 C. P. C. and is analogous to a dismissal under O. 9 r. 3 C P. C. which would also apply to the case of appeals when read with sec. 107 C. P. C. Now it is Well established that when a suit has been dismissed under O. 9, r. 3 and an application for its restoration is made by the plaintiff, no notice to the defendant is necessary so far as restoration itself is concerned. There is, however, authority for the view that when the suit has been restored and a date is fixed for the re-hearing of the case, notice must be given to the defendant of such date except where it had been ordered before the dismissal that the suit do proceed ex parte against the defendant. In Moolchdnd vs. Gangasahai (1), the facts were that both the plaintiff and the defendant were absent at the hearing and the suit was dismissed for default under O. 9, r. 3 C. P. C. An application was then made by the plaintiff for restoration of the suit. A notice of the application was served on the defendant who, however, failed to put in appearance. The application was then allowed, and the case was fixed for re-hearing. But of this date of hearing, the defendant had no notice. The suit was decreed and thereafter the defendant applied for restoration of the case. In these circumstances it was held that when the plaintiff was allowed a second chance by having the application for restoration granted, it was inequitable that the defendant should not have notice of the date fixed for the hearing. It was further observed that in such a case the defendant should be held entitled, as a matter of right, to notice of the hearing of the suit. I may add that the present case is stronger inasmuch as even no notice of the restoration application was ever given to the present petitioner. The same view was followed in Ramchandra Khatik vs. Sahadeo Koshti (2 ). Even if one were not to go so far as that, it clearly seems to me that the hearing of the suit or appeal behind the back of the opposite parties in it, in such circumstances, would be opposed to the fundamental principles of natural justice because, for aught one knows, the defendant or the respondent, having come to know that the suit or appeal had been dismissed, need scarcely bother any more about it, and may well rest content with the knowledge of such dismissal; and if so, it would certainly not be fair play for him if thereafter the suit or appeal having been restored is even re-heard and finally decided against him without any notice having been given to him of such hearing. I would, therefore, hold that where an appeal happens to have been dismissed for default of both parties and thereafter it is restored on the application of the appellant, then no notice of the application for restoration ran be claimed by the other party as a matter of right, but even so, where the appeal is eventually restored and fixed for hearing, the latter must be given a notice of such hearing on principles of natural justice before it can be decided against him. The only exception to this rule would be where the respondent was already placed ex parte before the appeal was dismissed for default which is not the case here. For the foregoing reasons, I have no other alternative than to allow this application and set aside the judgment and decree of this Court dated the 16th January, 1958, and hereby order that the appeal shall be readmitted for hearing. I make no order as to costs as the defendants appellants have not appeared to oppose this application. Before the appeal is set down for hearing, office will see that notices do go to the appellants and are duly served on them. . ;