JUDGMENT Radha Krishna Chowdhry, J. - This is an application in revision by Bishambhar Dayal and Banwari Lal and it arises in the following circumstances. 2. The applicants were prosecuted under section 406 IPC, on the complaint of one Shabbir Ahmad. The trying Magistrate, the Judicial Officer of Bijnor, dismissed the complaint and discharged the accused under section 203 Criminal Procedure Code, by an order dated 14-1-1957. The complainant went up in revision against that order to the learned Sessions Judge of Bijnor. The revision was taken up for hearing on 13-4-1957 but it was dismissed on the ground of non-appearance on behalf of the petitioner. The short order passed was: "None appears for the applicant. Rejected." 3. The complainant moved an application before the Sessions Judge on 8-5-1957 and prayed that the file be summoned and revision be restored and reheard according to law on the ground that the applicant had gone out of station and his counsel could not appear because the case was taken up in the early hours of the court. This application was allowed by the learned Sessions Judge on 9-8-1957, and it is this order of the learned Sessions Judge which is the subject-matter of the present revision. On a review of rulings pro and con he came to the conclusion that he had the power to restore the revision petition and re-hear it. He was also of the view that the reason for non-appearance given by the complainant was sufficient. In the result, allowing the application, he ordered that the order dated 13-4-1957 dismissing the revision petition be restored to file for being re-heard. 4. A number of cases were cited before me by the learned counsel for the parties. I do not propose however to consider those cases in which the powers of the High Court have been considered but confine myself to a consideration of only those cases which deal with the powers of the Sessions Judge. Before considering them however the provisions of section 369, Criminal Procedure Code, which have been taken to bar the entertainment of an application like the one presented by the complainant on 8-5-1957, may be considered. Before considering them however the provisions of section 369, Criminal Procedure Code, which have been taken to bar the entertainment of an application like the one presented by the complainant on 8-5-1957, may be considered. That section, so far as it is relevant for purposes of the present case, runs as follows:- "Save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error." 5. Only two decisions, both of which were incidentally decisions of the Madras High Court, have been cited before me. The one cited by the learned counsel for the applicants is reported as Subramania Kandar v. Ramaswami Kandar, AIR 1949 Madras 154. A contrary view is expressed in K. Kunhahamad Haji v. Emperor, AIR 1923 Madras 426 and it has been cited by the learned counsel appearing for the opposite party. The 1949 decision cited by the learned counsel for the applicants makes no reference to the earlier decision relied upon on behalf of the opposite party. In tact, the decision in the 1949 case is a brief one and all that was said in support of the view expressed therein was that there was no provision in the Criminal Procedure Code analogous to O. 9, R. 9, or O. 41, R. 19, CPC, and that since the order of dismissal was passed by the court of first instance under section 203, Criminal Procedure Code, it did not prevent the complainant from filing a fresh complaint if there be sufficient facts justifying such a course. Now, it appears to me that the order dated 13-4-1957 passed by the learned Sessions Judge suffered from two defects. In the first place, there is no provision in the Criminal Procedure Code which entitled a court of revision to dismiss the revision for default of appearance of the applicant, where the revision is based upon an application. Of course, under section 440 of the Code no party has any right to be heard either personally or by pleader before any court when exercising its powers of revision. Of course, under section 440 of the Code no party has any right to be heard either personally or by pleader before any court when exercising its powers of revision. At the same time, not only does the proviso to that section leave it to the discretion of the court to hear a party if it thinks fit, but it is only proper that where a revision arises on the application of a party an opportunity of being heard should be granted to that party before it is rejected. The other objection to which the aforesaid order dated 13-4-1957 is open is that it cannot properly be said to be a judgment since it was not disposed of on merits but merely on the ground that the applicant had failed to put in appearance. That being so, the order dated 13-4-1957 could not be said to be a judgment within the intendment of section 369, Criminal Procedure Code, the signing of which bars its review except to correct a clerical error. A revision dismissed for default of appearance can therefore be reheard by a Sessions Judge. In this view I find support from the decision in the 1923 Madras case relied upon by the learned counsel for the opposite party. The learned Sessions Judge was therefore right in holding that he was entitled to re-hear the revision. True, he purports to have restored the revision and there is no provision for restoration; but he should be deemed to have proceeded to re-hear the revision as he purported to do. 6. It was also submitted that there was no sufficient ground for absence of opposite party's counsel on 13-4-1947. Firstly, that was a matter for the Judge's discretion and he exercised that discretion judicially. Secondly, the Judge not having been justified in dismissing the revision on the ground of default in appearance, the question of sufficiency or otherwise of the reason for absence does not arise. 7. The application in revision is dismissed. The stay order is discharged.