ORDER
Srinivasan, J.
1. The revision petition is against the order dismissing an application filed by the petitioner herein to discharge the summons issued to him for examining him as a witness. The short facts are as follows: The petitioner was appearing as counsel for the first respondent herein in certain proceedings. One of such proceedings was O.S. No. 1584 of 1979. That was a suit filed by the first respondent for an injunction against his brother. There were three other suits between the first respondent and his brother the second respondent and there were other parties also involved in those disputes. It is not necessary for the purpose of this case to set out the details of those cases. Ultimately, all the matters were referred to arbitration by a joint memo filed in the Court. The arbitrators passed an award and the award was filed in Court on 30.10.1984. On the basis of the award a decree was passed in one of the suits viz., O.S. No. 441 of 1981. The award itself directed the plaintiff in the other three suits viz., O.S. No. 1584 of 1979, O.S. No. 170 of 1983 and O.S. No. 172 of 1983 to report settlement out of Court. Memos were filed in all the three suits. Insofar as O.S. No. 1584 of 1979 is concerned, a memo was filed by the petitioner herein as counsel for the first respondent herein, who was the plaintiff in that suit. Pursuant to the said memo the suit was dismissed as settled out of Court.
2. The first respondent filed I.A. No. 1595 of 1985 for restoration of the suit to file under Order 9, Rule 9 of the Code of Civil Procedure. The first respondent staled in the affidavit filed in support of the application that he was initiating proceedings to set aside the award and all the suits should be restored to file for trial on merits. Thus, he prayed for restoration of the suit O.S. No. 1584 of 1979 to file.
3. When the application was pending, the first respondent got summons issued to the petitioner herein and the arbitrators as witnesses in the proceeding. The arbitrators objected to their being examined as witnesses. Similarly, the petitioner also raised objections that there was no necessity to examine him as witness. The petitioner filed I.A. No. 1044 of 1989 for discharging the summons issued to him. The matters were heard together and by an order dated 18.8.1989 the Subordinate Judge, Salem, dismissed the application filed by the petitioner while discharging the summons issued to the arbitrators. The petitioner is aggrieved by the order dismissing his application and has preferred this revision petition.
4. It is not in dispute, that the proceedings initiated by the first respondent challenging the validity of the award passed by the arbitrators ended against him in the Court below and in this Court. The matter came to this Court in C.R.P. Nos. 1710 and 3236 of 1985 and C.M.A. Nos. 36 and 37 of 1987. By my Judgment dated 12.4.1988 I held against the contentions put forward by the first respondent herein and dismissed the revision petitions and the appeals. I uphold the validity of the award.
5. The first respondent has preferred an application for special leave in the Supreme Court of India challenging the correctness of my Judgment referred to above. That application is admitted to be pending.
6. Until the Supreme Court accepts the contention of the first respondent and holds that the award passed by the arbitrators is not valid, the suit O.S. No. 1584 of 1979 cannot be restored to file. The restoration of the suit will have to depend upon the pronouncement of the Supreme Court against the validity of the award. Hence, at this stage, there is no necessity for issuing summons to any person as witness in I.A. No. 1595 of 1985. The only ground on which the said application can be allowed is that the award is not valid. That ground can be taken by the first respondent only if the Supreme Court accepts his contentions and allows his appeal. Hence, in the circumstances, the proper course to be adopted by the Subordinate Judge, Salem is to keep I.A. No. 1595 of 1985 pending on his file till the disposal of the appeal filed by the first respondent herein in the Supreme Court.
7. One matter has to be cleared at this stage. The petition filed by the first respondent purports to have been filed under Order 9, Rule 9 of the Code of Civil Procedure. That is obviously wrong. Order 9, Rule 9 of the Code of Civil Procedure cannot be invoked for restoring a suit which has been dismissed as settled out of Court. That provision would apply only if a suit is dismissed for default. In this case the suit have been dismissed as settled out of Court on the basis of the award passed by the Arbitrators cannot be restored under the provisions of Order 9, Rule 9 of the Code of Civil Procedure. But, quoting a wrong provision of law will not disentitle a party to a relief if he is entitled to it on merits. Hence, the Subordinate Judge, Salem is directed to treat I.A. No. 1595 of 1985 as an application under Section 151 of the Code of Civil Procedure for restoration of the suit on the footing that the arbitrators’ award is invalid. The relief can be granted only if the Supreme Court holds that the award is not valid. Hence, I direct the Subordinate Judge, Salem to keep I.A. No. 1595 of 1985 pending on his file till the disposal of the matter by the Supreme Court.
8. If the Supreme Court upholds the claim of the first respondent, there is no necessity at all for him to examine any witness for the purpose of restoration of the suit or for allowing of I.A. No. 1595 of 1985. If the Supreme Court sets aside the award, I.A. No. 1595 of 1985 has to be allowed and the suit has to be restored to file. If, on the other hand, the Supreme Court rejects the claim of the first respondent and holds that the award cannot be set aside, then I.A. No. 1595 of 1985 should also be dismissed. Consequently, the first respondent cannot have the restoration of the suits. In the circumstances, there in absolutely no necessity for the first respondent to examine any witness on his side either way. Hence, the order of the Court below refusing to discharge the witness summons issued to the petitioner is unsustainable and it is hereby set aside.
9. The civil revision petition and I.A. No. 1044 of 1989 are allowed. There will be no order as to costs.
10. This order relates only to the order in I.A. No. 1595 of 1985 for restoration of the suit O.S. No. 1584 of 1979. This will not apply to any other proceedings which may be pending in the Court below at the instance of the parties.