Judgment S.N.Jha and B.N.P.Singh JJ. 1. By this petition the Plaintiffappellant seeks review of the judgment and order of this Court dated 19.6.1996 in Miscellaneous Appeal No. 117 of 1985. The Miscellaneous Appeal had arisen from the order of the Munsif, 3rd Court, Patna dated 12.5.84 dismissing Title Suit no. 85/37 of 1981/ 1983 preferred by the petitioner, as not maintainable. 2. The short facts of the case are that the petitioner filed aforementioned suit seeking reference of the dispute to the Arbitrator. The case of the petitioner is that he entered into an agreement with the defendant-opposite party for construction of small shops at New Yarpur in the town of Patna on 8.11.1979. The agreement stipulated completion of work within four months. According to the petitioner he started executing the work in all earnestness, collected materials for the purpose and made other arrangements to complete the work within the stipulated period. However the defendant-opposite party did not hand over possession of the entire worksite nor fixed the alignment for several weeks, thus causing obstruction in the execution of the work. Again, while the work was in progress the opposite party directed the petitioner some time in the second week of February, 1980 to stop construction in pursuance of an order of status quo passed by the Munsif, 3rd Court, Patna in Title Suit no. 23/80 preferred by the Post & Telegraph Department against the opposite party impleading the petitioner too as party to the suit. The petitioner suffered recurring loss due to abrupt stoppage of the work on account of idle labour, theft off materials, maintenance cost, blockage of security money, besides expenses incurred in litigation. The plaintiff in the circumstances submitted claim for Rs. 1,12,121/- on different dates in the year 1980. As the request remained unheeded, finally, pleaders notice was also given to the opposite party but without any result. In these circumstances the suit was filed seeking direction to the opposite party to file the agreement (original of which has been retained by them) and thereupon, refer the dispute detailed in Schedule I of the plaint, to an independent Arbitrator. The opposite party appeared and filed written statement objecting inter alia to the maintainability of the suit on the ground of absence of notice in terms of Section 46 of the Bihar Agriculture Produce Markets Act, 1960 (hereinafter referred to as the Act). The opposite party appeared and filed written statement objecting inter alia to the maintainability of the suit on the ground of absence of notice in terms of Section 46 of the Bihar Agriculture Produce Markets Act, 1960 (hereinafter referred to as the Act). The objection found favour of the Court and by order dated 12.5.84 the suit was dismissed as not maintainable. 3. Against the said judgment and order the petitioner preferred Miscellaneous Appeal No. 117/85 in this Court. By the judgment under review the appeal was dismissed. The Court observed that service of notice under Section 46 was not a formality. The Court looked into the notice which had been sent on behalf of the petitioner before instituting the suit and held that notice did not fulfil the requirement of Section 46 of the Act and as such the suit suffered from a vital defect and in the circumstances did not find any error in the judgment and order of the trial court dismissing the suit as not maintainable. It is relevant to mention here that the said order was passed in absence of the Counsel for both the petitioner and the opposite party, upon suo motu perusal of the judgment and order of the court below. 4. Feeling aggrieved by the ex-parte dismissal of the suit, behind his back, the petitioner filed application on 27.6.96 for re-admission of the appeal under Order 41, Rule 19 of the Civil Procedure Code. The said application came up for consideration on 6.12.96, The learned Judges took the view that as the appeal was dismissed on merit, if the petitioner wants recall or modification of the order, he may file review petition. Observing thus the Court declined to pass any order on the application. 5. At this stage we may observe, with due respect to the learned Judges who passed the judgment and order under review dated 19.6.96 as well as the subsequent order dated 6.12.96, that the appeal could not have been dismissed on merit in absence of the petitioners Counsel. The only option available to the Court was to adjourn the hearing or dismiss the appeal for non-prosecution in terms of Order 41, Rule 17 of the Civil Procedure Code. The point is covered by a number of decisions, one of them in the case of Deo Dutta Singh & ors. The only option available to the Court was to adjourn the hearing or dismiss the appeal for non-prosecution in terms of Order 41, Rule 17 of the Civil Procedure Code. The point is covered by a number of decisions, one of them in the case of Deo Dutta Singh & ors. V/s. Ram Naresh Singh & ors., AIR 1973 Patna 166, may be noticed. The Division Bench comprising of Untwalia, CJ and Sarwar Ali, J. after referring, to the precedents on the point observed: "When the appellant does not appear when the appeal is called on for hearing, the Court may either adjourn it " or dismiss it for default but it has no power to dismiss the appeal on merits, so that the appellant may get an opportunity to establish sufficient cause, if any, under Order 41, Rule 19 of the Code." 6. In view of the said decision of this Court it is apparent that the judgment and order dated 19.6.96 cannot be said to be a correct order. In the normal course thus the petitioner should have challenged it before the superior court i.e. the Supreme Court. Incorrectness of the order cannot be a ground for review unless the case falls within the ambit of Order 47, Civil Procedure Code. The petitioner instead applied for re-admission of the appeal in terms of Order 41, Rule19 CPC, though not in the proper format. Nevertheless, in our opinion, the application should have been registered as a Miscellaneous Judicial Case (MJC) under Order 41, Rule 19 of the Code and treating the same as such the appeal should.have been restored for hearing on merit. Unfortunately the relevant aspects of the case do not appear to have been pointed out to the learned judges leading to passing of the aforesaid order dated 6.12.96 asking the petitioner to file review petition without passing any order on the application. 7. It is apparent that the petitioner has been victim of two successive wrong orders of this Court. It is well settled that no party should be made to suffer for the mistake of the Court and therefore it would not be proper on our part to treat this petition as a petition for review simpliciter and on the ground that it does not fall within the ambit of Order 41 Civil Procedure Code dismiss the same. It is well settled that no party should be made to suffer for the mistake of the Court and therefore it would not be proper on our part to treat this petition as a petition for review simpliciter and on the ground that it does not fall within the ambit of Order 41 Civil Procedure Code dismiss the same. That would not be a just and proper approach. As mentioned above, the petitioner did file application for restoration of the miscellaneous appeal on which no order was passed. In the circumstances, we are of the view that it would be in the ends of justice to treat this review petition as one for restoration of the miscellaneous appeal in effect and substance. 8. We have observed above that the judgment and order dated 19.6.1996 cannot be regarded as a correct order in view of the decision of this Court in Deo Dutta Singhs case (supra) and, therefore we have no hesitation in restoring the appeal. Learned Counsel for the petitioner, Shri Uday Shanker Sharan Singh, however, submitted that the suit was filed in 1981 i.e. 22 years ago and if the appeal is simply restored for hearing, considering the level of pendency of cases in this Court, it is not known when the appeal will finally be heard. Allowing the appeal to remain pending for some more years would only deprive the petitioner of the possible fruits of his endeavour to get the dispute referred to the Arbitrator through the Civil Court in the aforesaid suit. Counsel made a request that to expedite the matter the Court may consider whether dismissal of the suit as not maintainable on the ground of absence of notice under Section 46 of the Act was a correct decision and if not, whether it would be appropriate to set aside dismissal of the suit at this stage itself and restore it for decision on merit. 9. As indicated above, the only ground on which the suit was dismissed is absence of notice under Section 46 of the Act. 9. As indicated above, the only ground on which the suit was dismissed is absence of notice under Section 46 of the Act. Section 46 of the Act runs as under: "Bar of suits in absence of notice (1) No suit or other legal proceeding shall be instituted against any Market Committee or the Board or any member, officer or servant thereof or any person acting under the direction of any such Market Committee, Board, member, officer or servant for anything done, or purporting to be done in good faith as such member, officer or servant or person under this Act until the expiration of two months after service of notice in writing stating the cause of action, the name, place of abode of the intending plaintiff and the relief which he claims has been, in the case of Market Committee or the Board delivered or left at its office, and in the case of such member, officer/servant or person aforesaid delivered to him or left at his office or usual place of abode, and the plaint shall, contain a statement that such notice has been so delivered or left; Provided that nothing in the section shall be applicable to any suit or other legal proceeding by the State Government, the Chairman, the Market Committee, or the Board against any member, officer, servant or other person. (2) Every such suit shall be dismissed, unless it is instituted within six months from the date of the accrual of the cause of action. (3) X X X X" From a bare glance of the above it would appear that the provision is akin to that of Section 80 of the Civil Procedure Code. There are decisions on the point that in order to qualify as a notice under Section 80 of the Civil Procedure Code it is enough if the requirements of the section are satisfied and it is not necessary that notice should be described as one under Section 80. The essential requirements are that the notice should state the cause of action, name (s) and place of residence of the proposed plaintiff and the relief(s) sought by him. Also that there should be valid service of notice as indicated in the Section and that the suit should be filed after expiry of two months of the service of the notice. Also that there should be valid service of notice as indicated in the Section and that the suit should be filed after expiry of two months of the service of the notice. 10 Counsel for the petitioner placed before us carbon copy of the notice sent by Sri Bharat Bhushan Prasad, Advocate on behalf of the petitioner, on 18.11.80. From perusal thereof we are satisfied that the necessary ingredients of notice laid down in Section 46 of the Act are fulfilled. The notice states relevant facts constituting the cause of action, it also mentions the name of the petitioner as the proposed plaintiff, and the relief sought by him which is same as in the plaint. The notice was addressed to the Chairman, Bihar State Agriculture Marketing Board and, also, the Superintending Engineer and the Executive Engineer of the Board and delivered at their office. The endorsement of the Receiving Clerk in token of the receipt of the notice prima facie shows that the notice was properly delivered as laid down under Section 46 of the Act. The suit was filed after expiration of the two months period on 16.3.81 but within six months as laid down in Sub-section (3). In these premises we are satisfied that the notice was in accordance with Section 46 of the Act and therefore the suit could not have been dismissed for so called absence of notice, as not maintainable. In this view of the matter, we are of the opinion that dismissal of the suit was not in accordance with law. Accordingly we recall the judgment and order dated 19.6.96 in Miscellaneous Appeal no. 117/85 and, further, set aside the order dated 12.5.84 of the court below dismissing the suit and restore the suit i.e. Title Suit no. 85/37 of 1981/83 to its file for decision on merit. 11. In the result, the petition is allowed in terms mentioned above. There will be no order as to costs.