JUDGMENT
Nagendra Prasad Singh, J.
1. This revision application has been filed on behalf of the defendant for setting aside an order dated 14-4-1972 passed by the learned Subordinate Judge, Dhanbad restoring the money suit filed on behalf of the plaintiff-opposite party, which had been dismissed under Order IX, Rule 4 of the Civil P.C., (hereinafter to be referred to as the Code).
2. The money suit in question had been filed on behalf of the plaintiff-opposite party on 30-10-1968. 3-1-1972 was a date fixed for the hearing in the said suit. On that day, a prayer for adjournment was made on behalf of the plaintiff and it was adjourned to 7-1-1972. On 7-1-1972, none of the parties appeared and no steps were taken either on behalf of the plaintiff or on behalf of the defendant. Accordingly, the learned Sub-
ordinate Judge dismissed the suit saying that when the suit was called none responded, and, as such, it was being dismissed. On 3-2-1972, plaintiff-opposite party filed a petition labelling it under Order IX, Rule 9 of the Code and making a prayer for restoration of the suit in question. On the basis thereof, a miscellaneous case was registered. On that very date, the learned Subordinate Judge directed issuance of notice to the defendant. The case was adjourned to different dates and ultimately on 14-4-1972 the application for restoration was taken up for hearing and the learned Subordinate Judge after hearing the plaintiff and considering the materials on the record passed an order restoring the suit to its original file. The defendant-petitioner was not, however, heard before the aforesaid impugned order was passed. According to the petitioner, as notice of the restoration application had not been served on him by that date, he could not be present to oppose the application in question.
3. The revision application was listed for hearing before a learned single Judge of this Court, who has referred it to Division Bench for consideration as to whether in the facts and circumstances of the case service of notice on the defendant-petitioner was obligatory before the suit in question would have been restored.
4. Before I consider that question, one fact should be mentioned that it is an admitted position that although the application for restoration filed on behalf of the plaintiff-opposite party had mentioned Order IX, Rule 9, it was an application under Order IX, Rule 4 of the Code, as on the date fixed in the suit neither the plaintiff nor the defendant had appeared. Order IX of the Code provides for the consequences of non-appearance of the parties. In this connection, it may be mentioned that Rule 2 and Rule 3 of Order IX provide for different sets of contingencies under which a suit can be dismissed. Rule 8, however makes provision for entirely a different situation. A suit can be dismissed under R 2 where on the date so fixed it is found that the summons bad not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-tee or postal charges for such service. Under Rule 3, a suit can be dismissed when neither party appears when the suit is called for hearing. When the suit is dismissed either under Rule 2 or under Rule 3 of Order IX, an application for restoration can be filed under Order IX, Rule 4, Order IX, Rule 8, however, applies to cases where the defendant appears but the plaintiff does not appear when the suit is called
for hearing and then also a Court can dismiss the suit in question. When a suit is dismissed under Rule 8, it can be restored in accordance with the provision of Order IX, Rule 9.
The basic difference in Rule 3 and Rule 8 is that whereas a suit can be dismissed under Rule 3 when neither the plaintiff nor the defendant appears when the suit is called for hearing, it is to be dismissed under Rule 8 when only the plaintiff is absent whereas the defendant is present at the time when the suit is called for hearing. Similarly, there is some basic difference between the provisions of Rule 4 and Rule 9 which are the two provisions for restoration. A suit dismissed under Rule 2 or under Rule 3 does not bar a fresh suit subject to the law of limitation apart from the remedy available to the plaintiff to make a prayer for restoration of the suit itself. Rule 9, however, precludes the plaintiff from bringing a fresh suit in respect of the same cause of action; he can only make a prayer for restoration of the suit already dismissed. Rule 4 is silent as to whether before an order of restoration of the suit is passed, the defendant is to be heard or not. On the other hand, Sub-rule (2) of Rule 9 specifically provides that no order under that rule restoring a suit shall be passed unless notice of the application has been served on the opposite party meaning thereby the defendant In view of Sub-rule (2) of Rule 9 of Order IX, there cannot be any dispute that before passing an order for restoration under that rule notice of the application for restoration has to be served on the defendant. Now the question is as to whether by necessary implication the same requirement is to be read in Rule 4 of Order IX.
5. Learned counsel appearing for the petitioner has submitted that although Rule 4 does not say in so many words that a notice of application for restoration shall be served on the defendant, but that has to be read in Rule 4, otherwise any order for restoration made without hearing the defendant will be in breach of the principles of natural justice. In support of this contention, learned counsel placed reliance on the Bench decisions of this Court in Srimati Premkanta Kumari Jain v. State of Bihar, (1973 Pat LJR 488) and Bishwanath Prasad v. Municipal Board, Chapra, (1976 BBCJ 204) : (AIR 1976 Pat 226) where this Court had an occasion to consider the scope of Section 198 of the Bihar and Orissa Municipal Act, This Court was of the opinion that although Section 198 does not say that a notice will be given to the person concerned before an encroachment is removed, in the circumstances arising it has
to be read in that section otherwise the effect will be that the encroachment is to be demolished without giving an opportunity to the person concerned to show cause that there was no encroachment on any public land. In my opinion, the principles laid down in these cases cannot be applied unless even the situations are of a similar nature having potentialities of causing harm and irreparable injuries to the persons likely to be affected by such orders. An order under Rule 3 dismissing a suit, as I have already pointed out above, is to be made only when neither the plaintiff nor the defendant is present when the suit is called for hearing. The absence of the defendant at the time of dismissal has been taken note of even for the purposes of restoration of the suit in Rule 4, and that is why under Rule 9 a specific provision has been made, but in Rule 4 there is no such provision requiring the court to serve a copy of the application on the defendant. If it is held that that requirement is also implicit in Rule 4 then, perhaps, there will be hardly any difference between the exercise of power under Rule 4 and Rule 9 of Order IX and there would have been no occasion for having two Rules, like Rule 3 and Rule 8 of Order IX. The framers of the Code, in my opinion, have made a distinction in the aforesaid two Rules on a rational basis.
6. The question whether a notice is to be served on the defendant before an order for restoration of the suit passed under Rule 4 of Order IX has been considered in several cases and reference in this connection may be made to the cases of Babu v. L. Dewan Singh (AIR 1952 All 749), R. Kapinipathi Rao v. Abdul Aziz Khan (AIR 1952 Mys 7), and Laljit Singh v. Pyarelal (AIR 1956 All 714) where it has been held that where both parties are absent and an order of dismissal of the suit is made, then the court has jurisdiction to set aside that order of dismissal without hearing the other party. The same view was expressed in the case of Ramji Lal v. Kesheo Ram (AIR 1923 Oudh 55 (1)) and Shiv Dularey v. Shiv Behari Lal (AIR 1953 Vindh Pra 10). A learned single Judge of this Court also in the case of Suraj Prasad Singh v. Rambaran Singh (AIR 1956 Pat 127), expressed the view that when order for restoration was made under Order IX, Rule 4 of the Code, no notice to the opposite party was necessary. However, in the case of Sawarlal Kejriwal v. Messrs S.N. Sunderson & Co. (Civil Revn. No. 1296 of 1973, disposed of on 29-4-1974 (Pat)) a learned single Judge of this Court set aside an order
passed under Order IX, Rule 4 of the Code because that order had been passed without notice to the opposite party. From the judgment of the aforesaid case (C.R. No. 1296 of 1973 (Pat)) it appears that none had appeared for the opposite party before this Court and the attention of the learned Judge was not drawn to the several authorities referred to above and the distinction between the scope of Order IX, Rule 4 and Order IX, Rule 9 of the Code. In view of the reasons given above, I respectfully differ with the view expressed in that case (C.R. No. 1296 of 1973 (Pat)).
7. Learned counsel appearing for the petitioner, however, laid stress on the point that if it is held that a suit dismissed for default can be restored under Order IX, Rule 4 without notice to the defendant, then Rule 4 will be hit by the principles of natural justice, as the Order dismissing the suit was an order in favour of the defendant. The principle that before an adverse order is passed against a person, he has to be heard in the matter is well established and cannot be questioned. It is not only applicable so far as judicial and quasi judicial proceedings are concerned, but under certain circumstances that principle has been extended even to administrative orders. But, the question is that where there is a specific statutory provision dispensing with such a requirement which has a rational basis, then, in my opinion, the principles of natural justice cannot override the specific statutory provision. I am supported in this view by a judgment of the Supreme Court in the case of Union of India v. J.N. Sinha (AIR 1971 SC 40) where it was observed as follows: (at p. 42).
“It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules or principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.”
I have already pointed out that the framers of the Code had made two provisions under two different situations, Order IX, Rule 4 for cases where both parties are absent and Order IX Rule 9 when only plaintiff is absent and defendant is present. In one situation, there is a statutory mandate that the opposite party is to be heard before the suit is restored, whereas in the other there is no such obligation. In my view, it has a rational basis and merely on principles of natural justice Rule 4 cannot be made at par with Order IX, Rule 9.
8. Learned counsel appearing for the petitioner then submitted that even if it is held that under Order IX, Rule 4 a court is not required to issue notice to the defendant, still once the court concerned thought it necessary to issue such a notice, it could not have passed the order restoring the suit before service of the notice on the defendant. In my opinion, once the learned Subordinate Judge had issued notice to the defendant, although he was not required to do so, he should have heard the question of restoration only after service of the notice but, merely on this ground the order in question cannot be interfered with in exercise of the revisional jurisdiction of this Court. It cannot be said that while doing so, there has been an error in exercise of jurisdiction. It is well settled that before this Court can interfere with an order passed by subordinate court, it must be satisfied that the case is covered by one of the three clauses of Section 115 of the Code. Reference in this connection may be made to the case of Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad v. Ajit Prasad Tarway (AIR 1973 SC 76), Major S. S. Khanna v. Brig. F. J. Dillon (AIR 1964 SC 497), D.L.F. Housing and Construction Co. (P) Ltd., v. Sarup Singh (AIR 1971 SC 2324) and the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria (AIR 1976 SC 2621), where it was pointed out that the words ‘illegality’ and ‘with material irregularity’ as used in Clause (c) do not cover either errors of fact or of law; the errors contemplated by that clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision. I have already held that in law there was no such requirement; as such it cannot be held that the order in question had been passed in breach of certain provision of law which is likely to affect the ultimate decision in the case.
9. Learned counsel appearing on behalf of the petitioner has made reference to the cases of Bihar State Electricity Board v. Jawahar Lal (AIR 1976 Pat 323), Tipan Raut v. Raj Kumar Singh (AIR 1977 Pat 53) and Smt. Vidya Vati v. Devi Das (AIR 1977 SC 397). From the aforesaid judgments themselves it will appear that before granting relief to the person concerned, it was held that the court concerned had passed the impugned order in contravention of well settled principles of law which had affected the ultimate decisions in the cases.
10. In the result, there is no merit in this application and it is, accordingly, dismissed, but in the circumstances of the case, there will be no order as to costs.
P.S. Sahay, J.
I agree.
