JUDGMENT S.B. Sinha, J. This Civil Revision Application is directed against an order dated 13.11.1990 passed by Shri G.N. Singh. Subordinate Judge, Ivth Court, Ranchi, in Misc. Case No. 10 of 1990 whereby and whereunder the said learned court condoncd the delay in filing the application and allowed the said application of the opposite party under order Ix rule 4 of the Civil procedure Code and thereby sot aside the order of dismissal of the suit dated 20.06.1990 passed in Title suit No. 342 of 1986. 2. The fact of the matter lies in a very narrow compass. Opposite party Nos. 2 and 3 filed Title suit No. 342 of 1986 against the Petitioners for declaration of their right, title and interest in respect of the suit properties as also for setting aside the deed of sale purported to have been executed by Defendant No.1 in favour of the defendant Nos. 2 to 7 and further for a decree for permanent injunction restraining the defendants from disturbing the possession of the plaintiffs. The defendants-petitioner filed written statement in the said suit. 4. It appears that an application for injunction was filed on behalf of the plaintiffs and in relation to the order passed therein, a Civil Revision Application was filed before this court being civil Revision No. 475 of 1988(R). By an order dated 24.2.1989 this Court directed the trial court to dispose of the suit within a period of six months from the date of communication of the order, the said order dated 24.2.1988 is contained in Annexure-1 to this Civil Revision Application 5. Thereafter a proceeding was initiated as against the petitioners on behalf of the plaintiffs-opposite parties for alleged violation of the order of injunction passed therein and the said matter also came up before this court in Civil Revision No.282 of 1989 (R). In that Civil Revision this Court by an order dated 19.3.1990 which is contained as Annexure 2 to this Civil Revision Application directed as follows : “It is unfortunate that despite a clear direction contained in the order of this Court dated 24.2.1989 the suit could not be disposed of within the period of six months as directed. In view of the instant revision application and the stay order passed, the suit has remained pending. In view of the instant revision application and the stay order passed, the suit has remained pending. I direct the trial court to now proceed with the disposal of the suit and to dispose of the same within a period of six months from the date on which a copy of this order is either communicated or produced before the trial court.” 6. It appears that order of this Court was communicated to the court below on 19.6.1990. From the ordersheet of the said suit which is contained in Annexure-3 to the civil Revision Application, it appears that on the earlier date, namely, 2.6.1990 both - parties were absent. However, the learned court below in terms of the order dated 19.3.1990 directed the suit to be fixed for hearing .n the next dare despite the fact that on that date also nobody appeared. 7. On 20.6.1990 both the parties were absent. By an order of the said date, the suit filed by the plaintiffs was dismissed for default. 8. The plaintiff's thereafter filed an application for restoration of the suit beyond the period of thirty days as provided for under Article 122 of the Limitation Act, 1963 and filed an application for condonation of delay. By reason of the impugned order the learned court below as noticed herein above condoned the delay and restored the suit to its original tile by setting aside the order of dismissal. 9. In this proceeding a counter affidavit has been filed wherein it has been stated as follows : "That the deponent, however, humbly states that they had also challenged the transfer of the case from the court of Shri J.N. Sharma, Additional Subordinate Judge to the court of Shri J.N. Singh, Addl. Sub-Judge in which stay of further proceeding had been granted by the learned Judicial Commissioner, Ranchi, which is still pending being Case No. MJC 82 of 1989." 10. Mr. M.Y. Bqbal, learned counsel for the petitioners principally raised two contentions in support of his Civil Revision Application. Firstly the learned counsel submitted that in view of the fact that the period for filing an application for restoration of a suit dismissed for default under order Ix, rule 4 of Civil procedure code is 30 days, no application for restoration of the suit was maintainable after expiry of the said period. Firstly the learned counsel submitted that in view of the fact that the period for filing an application for restoration of a suit dismissed for default under order Ix, rule 4 of Civil procedure code is 30 days, no application for restoration of the suit was maintainable after expiry of the said period. In support of this contention, the learned counsel for the petitioners has relied upon the case of Kali Prasad Tewari Vs. Parmeshwar prasad: A.I.R. 1929 Allahabad 127 and M.L.B.-Corporation V. Bhutnath : A.I.R. 1964 Supreme Court 1336. It was further submitted by the learned counsel for the petitioners that in any event the order dismissing the suit for default could not have been recalled under section 151 of the code of Civil procedure. The learned counsel has placed strong reliance in support of the aforementioned submission on the case of Radhanath Pathak Vs. Bihar state of Religious Trust, patna. A.I.R. 1963 patna 110. In that case, the question that fell for consideration before the Division Bench was at to whether in view of the provisions of Article 122 of the Limitation Act, 1963, the Court Could circumvent the law of Limitation by exercising its inherent power under section 151 of the Civil procedure Code. There is no doubt that a Court cannot exercise its inherent power ignoring the specific provisions for dealing with a case by resort to inherent jurisdiction. In that case, it appears that no application under section 5 of the Limitation Act, was filed but the Court restored the suit in purported exercise of its inherent power. This decision, therefore, has no application in the facts and circumstances of the case, inasmuch as the point involved in this application was not under consideration in Radhanath pathak's case (Supra). It is now well known that the decision is an authority for the proposition it decided and not what can logically be deduced from it. It is also well known that the point which was not argued cannot be used as a precedent. Reference in this connection may be made to 1990 Vol. 2 SCC 71. 11. Learned counsel for the petitioners next submitted that even assuming that such application was maintainable even after expiry of the period of thirty days from the date of dismissal of the suit, the delay could not have been condoned without giving an opportunity of hearing to the petitioners. 2 SCC 71. 11. Learned counsel for the petitioners next submitted that even assuming that such application was maintainable even after expiry of the period of thirty days from the date of dismissal of the suit, the delay could not have been condoned without giving an opportunity of hearing to the petitioners. The learned counsel in this connection has strongly relied upon a decision of this Court in the case Forbesganj Jagdish Mill V. Kaloram: 1985 PLJR 504 . 12. Mr. Eqbal however, conceded that in view of the Division Bench decision of this Court in R.K. Agrawalla Vs. Commissioner of Dhanbad : 1978 BBCJ 525 that in a proceding for setting aside the order of dismissal in terms of order Ix rule 4 of the Civil procedure code, the dendants were not required to be noticed. 13. Mr. Dilip Jerath learned counsel appearing on behalf on the opposite Parties, on the other hand, submitted that from a perusal of paragraph 4 of the counter affidavit it would appear that the learned court below could not have dismissed the suit for default, inasmuch as farther proceedings in his court were stayed by the learned Judicial Commissioner, Ranchi in MJC No. 82 of 1989 which, according to the learned counsel is still pending. The learned counsel, therefore, submitted that this court should not exercise its discretion in favour of the petitioners, inasmuch as in the event the impugned order is set aside another illegal order, namely, the order dated 20.6.1989 would be revived. 14. Re: Contention: Article 122 of the Limitation Act, 1963 reads as follows: Description of application. period of Time from which period limitation. begins to run. To restore a suit or appeal Thirty The date of dismissal. or application for review days. or revision dismissed for default of appearnce or for want of prosecution or for failure to pay coats of service of process or to furnish security for costs. From a perusal of the said provision it is evident that an application under order IX, rule 4 of Civil procedure Code is required to be filed within a period of thirty days from the date of dismissal of the suit. From a perusal of the said provision it is evident that an application under order IX, rule 4 of Civil procedure Code is required to be filed within a period of thirty days from the date of dismissal of the suit. It is true that in the decision of the Allahabad High Court referred to by Shri Eqbal, it has been held that an application under Order IX, rule 4 of the Civil procedure Code for restoration of the suit dismissed under the said provision has to be filed within a period specifed under Article 163 of the Limitation Act, 1908 However, in my opinion, in terms of section 5 of the Limitation Act, 1963, there cannot be any doubt that the Court, in a given case, may condone the delay in filing any application whatsoever, The only application in relation whereof the provision of section 5 of the Limitation Act, 1963 shall not apply is one under order XXI of the Civil procedure Code. 14. In this connection Section 5 of the Limitation Act, 1908 may also be noticed: "5. Extension of Period in certain cases-Any appeal or application for a review of judgment of for leave to appeal or any other application, to which this section may be made applicable by or under any enactment for the time being in force, may be admitted after the Period of Limitation prescription there for, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period," 15. Previously, therefore, Section 5 of the Limitation Act, 1908 was applicable only in relation to such application to which the said section was made applicable by or under any enactment, but no such embargo exists under Section 5 of the Limitation Act, 1963. 16. In Smt. Bimala Devi Vs. Patitapaban Dev reported in A.I.R. 1973 orissa 169. Full Bench of the Orissa High Court has held that an application under Section 5 of the Limitation Act, 1963 shall apply in a case where the application is governed by Article 122 of the Limitation Act., 1963. 17. In Kali Prasad Vs. 16. In Smt. Bimala Devi Vs. Patitapaban Dev reported in A.I.R. 1973 orissa 169. Full Bench of the Orissa High Court has held that an application under Section 5 of the Limitation Act, 1963 shall apply in a case where the application is governed by Article 122 of the Limitation Act., 1963. 17. In Kali Prasad Vs. parmeshwar prasad A.I.R. 1929 Allahabad 127, Sulaiman, J. held that application in question having been made under Order IX rule 4 of the Civil procedure Code and as there was no express provision in that order which makes Section 5 applicable to such application, as for instance is to be found in order XXII, rule 9, Sub- Cl. (3), time for filing the application under Order IX, rule 4 of the civil procedure Code would be thirty days. 18. The ratio of the aforesaid decision is no longer available in view of change in law made in Section 5 of the Limitation Act, 1963. In Mahindra Land and Building corporation Ltd. V. Bhutnath Banerjee and others :A.I.R. 1964 Supreme Court 1336, the Supreme Court held that the trial court had jurisdiction to admit the application to which its provisions are made applicable, even when presented after the expiry of the specified period of Limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time and the Court, therefore, had jurisdiction to determine whether there was sufficient cause for the appellant not making the application for setting the abatement of the suit in time and. if so satisfied to admit it. It was further held that once the trial court was satisfied to admit the application beyond the period of limitation, the High Court would fell in error if it interfere with that finding of fact. This decision, therefore, does not support the contentions raised by Mr. Eqbal. 18. In this view of the matter, in my opinion, it must be held that Section 5 of the Limitation Act, 1963 applies to an application under order IX, rule 4 of the Code of Civil procedure. 19. Re. Contention 2. There cannot be any doubt that when an application under section 5 of the Limitation Act, for condonation of delay is filed by a party to the suit the other aide is entitled to an opportunity of being heard. 19. Re. Contention 2. There cannot be any doubt that when an application under section 5 of the Limitation Act, for condonation of delay is filed by a party to the suit the other aide is entitled to an opportunity of being heard. The order dismissing a suit for default gives rise to a right upon the defendant. 20. However in terms of order IX rule 4 of the Civil Procedure Code, a fresh suit would also be maintainable subject to the law of limitation. 21. From a perusal of the plaint it appears that therein the cause of action for the suit was said to have arisen in the year 1985. In this view of the matter, a fresh suit at the instance of the plaintiff will be maintainable even if the impugned order is set aside. 22. It is well known that the courts normally lean in favour of the hearing of a suit on merits. It is further well known that liberal approach should be adopted in disposal of the application for condonation of delay. Reference in the matter may be made to the case of Collector, Land Acquisition Anantnag Vs. Katiji : A.I.R. 1987 Supreme Court 1353, 1987 vol. 2 S.C.C. 107. 23. In terms of the proviso appended to Section 115 of the Civil procedure Code, the petitioner is not only required to show that a jurisdictional error has been committed by the Court below in passing the order impuged but also inter alia is required to show that the impugned order, if allowed to stand, shall cause irreparable injury to the petitioner. In view of the fact that despite the order dated 20.6.1990 passed by the court below dismissing the suit for default, the plaintiff would be entitled to file another suit for the self-same relief, in my opinion, the impugned order, if allowed to stand shall not occasion failure of justice nor shall it cause irreparable injuries to the petitioners. 24. It is further well known that the jurisdiction of this Court under Section 115 of the Civil procedure Code is a discretionary one. The court, in a given situation, may refuse to exercise its discretion if in its opinion substantial justice has been done to the parties. 25. Both the parties had not taken any step before the court below. It is further well known that the jurisdiction of this Court under Section 115 of the Civil procedure Code is a discretionary one. The court, in a given situation, may refuse to exercise its discretion if in its opinion substantial justice has been done to the parties. 25. Both the parties had not taken any step before the court below. Further the court below cannot be said to have acted judiciously in fixing the date of hearing of the suit on the next of receipt of a copy of this Court’s order without communicating the same to the advocates of parties. In any event, there does not appear to be any earthly reason for fixing the date of hearing of the suit on the very next date. 26. The Court below in view of the evidences adduced on behalf of the plaintiffs-Opposite parties specifically held that they had sufficient cause for not attending the court on 20th June, 1989 and had further sufficient cause for filing the application after expiry of the period of one month. In a case where discretion has properly been exercised, this Court is loathe to interfere therewith. 27. In Brij Gopal Mathur Vs. Kishun Gopal Mathur and others: A.I.R. 1973 Supreme Court 1096, the Supreme Court following its earlier decision in the case of S.S. Khanna Vs. F.J. Dillon : A.I.R. 1964 supreme Court 497 held that it is not necessary for the High Court to exercise its revisional jurisdiction only because it is law-ful to do so. This decision was rendered before the amendment carried out in Section 115 of the Civil procedure code by reasons of Civil procedure code (Amendment) Act, 1976. 28. From a perusal of paragraph 4 of the counter affidavit filed on behalf of the plaintiff• opposite parties it is evident that further proceedings in the suit was stayed by the learned Judicial commissioner, Ranchi, in MJC No. 82 of 1990 as the plaintiffs challenged the order of transfer of the suit from the court of Shri J.N. Singh, Addl. Sub-Judge to the court below. Evidently that the said order dated 20.6.1989 was wholly illegal and without jurisdiction. From the ordersheet dated 13.6.1989 it appears that the stay order was communicated to he court below on 13.6.1989. 29. In this view of the matter, the Court could have recalled the order dated 20.6.1990 even in exercise of its inherent jurisdiction. Sub-Judge to the court below. Evidently that the said order dated 20.6.1989 was wholly illegal and without jurisdiction. From the ordersheet dated 13.6.1989 it appears that the stay order was communicated to he court below on 13.6.1989. 29. In this view of the matter, the Court could have recalled the order dated 20.6.1990 even in exercise of its inherent jurisdiction. 30. The doctrine' Actus curiae Nemenim Gravabit means that no person shall suffer owning to the mistake on the part of the Court. As the court committed a mistake in dismissing the suit for default in terms of the order dated 20.6.1990, the plaintiffs opposite parties should not suffer therefor. 31. In this view of the matter, I refuse to exercise my revisionl jurisdiction in favour of the petitioners. However, it may be observed that in view of the order of this Court passed in Civil Revision, hearing of the suit must be expedited, Mr. Dilip Jerath, learned counsel for the opposite parties states that he would withdraw the aforementioned MJC No. 82 of 1990. 32. In this view of the matter it is directed that the learned trial court, immediately on receipt of a copy of the order of withdrawal of the said MJC No. 82 of 1990, shall fix a date for hearing to the suit and dispose of the same as early as possible and not later on two months from the date of receipt of a copy of the order. This application is, therefore, dismissed. However, in the facts and circumstances or the case, the parties shall bear their own costs. Revision dismissed.