ORDER
Mithan Lal, J.
1. This civil revision filed by the defendant arises out of an order of restoration passed by the Second Additional Civil Judge, Dehra Dun, under the following circumstances : The suit was dismissed for the plaintiff’s default in the forenoon of 22-6-1959. Immediately after the order was signed [he counsel for the plaintiff entered the courtroom and within a few minutes made an application for restoration of the suit under Order 9, Rule 9, C. P. C. The Court passed an order “Let a copy of the application be given to the defendants’ counsel and the case be put up for orders after lunch.” On the copy of the application served on the defendants’ counsel they noted that they had no instructions. The learned Second Additional Civil Judge finding the grounds sufficient set aside the order of dismissal on that very day and restored the suit. It is against this order that the present revision has been filed.
2. The only point which has been contended in this case by Sri S. N. Misra, learned advocate for the applicant, is that the Court below had no jurisdiction to set aside the order of dismissal and restore the suit without notice to the applicant and that the counsel for the applicant could not be deemed to have continued to act after the suit had been dismissed for default. The submission is that the notice in such a case should have been sent to all the defendants and mere service of the notice on the counsel or information to the counsel for the defendants was not sufficient compliance with the provisions of Order 9, Rule 9 (2). The opposite parties are unrepresented and so the Court had, not had the advantage of any assistance from the other side. The contention of the learned counsel for the applicant has no force in view of the provisions of law.
3. Order 9, Rule 9, lays down as follows:
“(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.”
3-A. The above provision will show that the requirements of Rule 9 for restoration of a suit dismissed for default of the plaintiff are as follows:
(1) The plaintiff must apply to the Court to set aside the order of dismissal.
(2) He must satisfy the Court that there was sufficient cause for non-appearance when the suit was called for hearing, and
(3) The Court must serve a notice of the application on the opposite party.
Any order of restoration without compliance with any of the above three provisions would be without jurisdiction and would not be a proper order. In this case the plaintiff did make an application and the Court also found that the reason for the absence of the plaintiff was sufficient and so there was compliance with the first two requirements of the rule. The complaint of the defendants is that there was no compliance with requirement 3 above, according to which a notice should have been sent to all the defendants personally and the suit could not be restored without any such notice. In other words the contention is that there was no sufficient compliance with the provisions of Rule 9 (2). The question is whether Sub-rule (2) requires that a notice must go personally to the defendants and whether a notice given to the counsel is not sufficient.
4. The learned counsel for the applicant has not been able to cite any authority in support of his submission that a notice should have been sent to the defendants personally, particularly in a case of this type where the plaintiff got into the court-room immediately after the order was passed and the parties were supposed to be present with their counsel in the court-room. What Sub-rule (2) requires is the service of notice on the opposite party. It does not require that the notice should be issued personally to the opposite party and also served personally. It will be adding something in Sub-rule (2) if the contention of the learned counsel is accepted.
The Legislature purposely used the expression “served on the opposite party” instead using the expression “notice of the application has been issued personally and served on the opposite party”. The Legislature purposely maintained a distinction between the expressions ‘issued’ and ‘served’. For example under Order 5, the Legislature has laid down that a summons may issue to the defendant to appear and answer the claim on a day to be specified therein. There are other provisions in the Code relating to the issue of notices and service of notices. Wherever the Legislature intended that the notice should go to the opposite party personally they have used the expression “issue”. But where the intention was that there should be proper service of notice whether issued personally or to his authorised agent, the Legislature has used the word “served”. What Rule 9 (2) requires is that a notice should be served on the opposite party. It does not require that it should be issued to the opposite party personally and should also be served likewise.
5. There will be sufficient compliance with the provisions of Rule 9 (2) if a notice is served on the opposite party in any of the modes provided in Order 5, Rule 9 onwards. There is a further provision for recognised agents and pleaders in Order 3 of the Code and Rule 3 lays down :
“3 (1) Processes served on the recognized agent of a party shall be effectual as if the same had been served on the party in person, unless the Court otherwise directs.
(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent.”
6. With respect to the pleaders a specific provision has been made in Rule 5 which says:
“5. Any process served on the pleader of any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless, the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person”.
The appointment of a pleader further continues until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court and for that purpose a provision has been made in Order 3, Rule 4 (2), which is as follows:
“4 (2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies or until all proceedings in the suit are ended so far as regards the client.”
7. According to the aforesaid provisions the notice can be served on an agent. In this case a counsel who was appointed under Rule 4 and whose appointment had not been withdrawn or otherwise ended had the authority to accept
notices on behalf of the defendants until all proceedings in the suit had ended. The proceedings in a suit do not come to an end by a mere dismissal of the suit for default and consequently where a counsel has been engaged for the conduct of a suit and the suit has been dismissed for default his duty cannot be deemed to have come to an end. If he is a pleader for the plaintiff he can apply for restoration of the case without filing a fresh vakalatnama and if he is a pleader for the defendant he can be served with a notice of the application for restoration and he can further contest the restoration application without a fresh vakalatnama. Similarly if the suit has been decreed ex parte, the pleader who represented the defendant can apply for setting aside the ex parte decree without filing a fresh vakalatnama.
A vakalatnama remains in force until all proceedings in a suit are closed and now the view is that an application for execution after the passing of the decree is also a proceeding in the suit. It will not be worthwhile to quote the authorities of the various High Courts including our own High Court in which the above view has been expressed. Suffice it to say that a vakalatnama of a pleader appointed under Order 3, Rule 4 continues to remain in force until all proceedings in the suit are closed. Proceedings in a suit are not closed by mere dismissal of a suit for default or by mere passing of an ex parte decree and consequently the defendants’ counsel continued to be a counsel for the defendant and the service of the notice of application could be legally made on him.
Learned counsel for the applicant relied upon ‘the authority of Mohd. Jamil v. Mst. Bibi Tufailan, 63 Ind Cas 47 (Pat). The facts of that case are distinct from the facts of the present case, because in that case notices were not issued and even though the Munsif directed the applicant to file Talbana, the Talbana was not filed with the result that the notices could not be served. In that case there was also no order for service of notice on the pleader and it was under such circumstances that the learned Judge laid down that even though Order 3, Rule 5, provided that any process served on the pleader of any party shall be presumed to be duly communicated, yet there being no order of the Court for service of notice upon the pleader it could not be said that the pleader continued to represent the client. If the learned Judges meant to lay down that the proceedings in the suit had ended by the passing of an ex parte decree, then with due respects I am unable to agree with the view of the learned Judges and it cannot be accepted that the aforesaid authority lays down any good law. Certain general observations which have been made in that case were not required for the purpose of the suit because in that case the defendant made a default in filing Talbana and the Court had also not issued an order for service of a notice on the pleader. In the present case the Court did pass an order and in fact served a copy of the application on the defendants’ counsel. There is the further fact in the present case that every thing happened immediately after the order was signed and the parties and their counsel had hardly left the Court.
A reference was also made to the authority of Chetti Venkataraju v. Ramabhaddirraju, AIR 1942 Mad 403. The matter in that case related to the procedure in appeals to the Madras High Court from the original decree of the subordinate Courts and what was laid down in that authority is that special provisions made In Order 41-A should be deemed to exclude the general provisions of Order 3 Rule 5, C. P. C.
8. In view of what has been stated above there was sufficient and substantial compliance with the provisions of
Order 9, Rule 9 (2), C. P. C., and the notice having been served on the counsel for the defendants it was not necessary to issue notices personally to the defendants. The service was sufficient and the Court having found substantial grounds for the restoration of the suit it cannot be said that the Court had no jurisdiction to set aside the order of dismissal. The revision, therefore, must fail.
9. The revision is dismissed, but no order is made as to costs. The order passed by the Court below is maintained. Record of the case shall be sent back to the Court below forthwith.
