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1958 DIGILAW 211 (MAD)

Govindaraju v. Lala alias Pon Perumalsami Naidu

1958-08-05

RAMASWAMI GOUNDER

body1958
Order The point for determination is whether a Civil Revision Petition which has been dismissed for default of appearance can be restored. So far as this High Court is concerned there are two lines of decisions. Byers, J., in Ramamurthi v. Meenakshi Sundarammal3, following the decision of Burn, J., in Khizar Muhammad v. Abdul Razack4, came to the conclusion that this Court has no jurisdiction to restore to file Civil Revision Petitions which have been dismissed for default of appearance mainly on the ground that Order 9, rule 9, Civil Procedure Code applies only to suits and not to Civil Revision Petitions. Byers, J., also followed his own decision in Subbamma v. Venkata Reddi5. This is one line of decisions. Kunhi Raman, J., in C.M.P. No. 5421 of 1942 and Wadsworth, J., in C.M.P. No. 2962 of 1943 have taken the view that this Court has powers to restore such revision petitions. On account of the divergence of opinion the matter was taken up and the Rules Committee was consulted. The High Court drafted rule 41-B to be added to Chapter IV of Part II of the Appellate Side Rules which was in these terms:- “41-B. The provisions of rules 11 (2), 17, 18, 19 and 21 of Order 41 of the Code of Civil Procedure shall apply mutatis mutandis to Civil Revision Petitions.” This rule was finally added on 31st July, 1946. The combined effect of Rule 41-B of the Appellate Side Rules and Order 41, rule 19(1) of the Civil Procedure Code is to invest the High Court with power to restore a Civil Revision Petition which has been dismissed for default where it is proved that the petitioner was prevented by sufficient cause from appearing when the petition was called on for hearing. Having come to the conclusion that I have got jurisdiction to restore a Civil Revision Petition dismissed for default of appearance the next point for determination is whether in the circumstances the Civil Revision Petition should be restored to file. I hold that in the present case enough circumstances have been shown for restoration of the Civil Revision Petition dismissed for default. Ordered accordingly. C.R.P. No. 1540 of 1956 will be restored to file and heard in the usual course. R.M. ----- Petition allowed. C.R.P. No. 1540 of 1956 restored to file.