JUDGMENT : Petitioner was the plaintiff in a suit for partition. There were 9 defendants in the suit. Summons were served on all of them. Only defendants 1, 2 and 9 appeared before the trial court and contested the proceedings. Others were declared ex parte. After completion of proceedings, the case was listed for trial to 06.04.2019. On that day, the plaintiff remained absent. Hence the suit was dismissed for default. I.A.No.174 of 2019 to restore the suit was filed under Order IX Rule 9 CPC. Court below ordered notice to be issued to all the respondents, including the respondents who had remained ex parte. Petitioner filed review petition as R.P.No.219 of 2019 before that Court to review the order directing the petitioner/plaintiff to take out steps against the respondents who were ex parte. Court below dismissed the review petition by Ext.P2 order, which is assailed in this original petition. 2. Considering the limited question involved, the O.P(C) itself was heard without ordering notice to the respondents. 3. The contention of the learned counsel for the petitioner was that, the court below ought not have issued notice to the respondents, since in so far as it related to the defendants who remained ex parte, suit was dismissed under Order IX Rule 3 CPC and the dismissal of suit in relation to them can be set aside invoking Order IX Rule 4 CPC. It was contended that, under Order IX Rule 4 CPC, notice was not liable to be issued to the non-contesting respondents. Court below dismissed the application holding that the contention of the review petitioner that the dismissal of the suit for default was one under Order IX Rule 3 CPC and that the application must be treated as one under Order IX Rule 4 CPC as against exparte defendants was not sustainable and infact, the application was one under Order IX Rule 8 CPC. It was hence held by the court below that the restoration application can only be considered as one filed under Order IX Rule 9 CPC and Order IX Rule 9(2) CPC mandated that notice to the opposite party was essential. 4. Before the court below, learned counsel for the petitioner herein relied on several decisions. It was hence held by the court below that the restoration application can only be considered as one filed under Order IX Rule 9 CPC and Order IX Rule 9(2) CPC mandated that notice to the opposite party was essential. 4. Before the court below, learned counsel for the petitioner herein relied on several decisions. Same decisions were relied on before this Court to marshall the contention that the application in so far as it related to the ex parte defendants were concerned was one under Order IX Rule 4 CPC and consequently, notice to them was not necessary. It was contended that, in so far as it related to the contesting respondents, who were defendants Nos.1, 2 and 9, they were entitled to notice in the light of Order 9 Rule 9(2) CPC. 5. Learned counsel relied on the decision in Babu v. Dewan Singh (AIR (ALL) 1952 749) wherein, the Allahabad High Court had considered an identical issue. That was a case wherein the case stood posted for filing a written statement of the defendant. He was absent and the Court ordered that the suit could proceed ex parte against him. The case was adjourned to another day for ex parte evidence. When the suit was called for hearing on the adjourned date, neither the plaintiff nor the defendant were present and hence, the Court dismissed the suit in the absence of the parties. Thereafter, on request of the plaintiff, the suit was restored without issuing notice to the defendant. After restoring the suit, the suit proceeded as if the defendant remained ex parte and ultimately, passed an ex parte decree against him. This decree was sought to be set aside contending that the application for setting aside ex parte was allowed without issuing notice to him. 6. The Allahabad High Court held that the applicant in the above suit was not entitled for a notice since there was no law under which the notice was required to be given to him. It was held that the suit was dismissed under Order IX Rule 3 CPC and was restored under Rule 4 CPC. When Rule does not lay down notice before the suit is restored, notice should not be given to the defendant. It was held that the suit was dismissed under Order IX Rule 3 CPC and was restored under Rule 4 CPC. When Rule does not lay down notice before the suit is restored, notice should not be given to the defendant. It was held that the defendant is entitled to notice only when a suit is dismissed for default under Rule 8, in his presence and thereafter is sought to be restored. 7. Repelling the further contention that after restoring the suit, trial court should have given notice to the defendant on the date fixed for recording the evidence, the Court held that, there was no provision under the Act by which trial court was bound to give notice of the date of trial. It was held that, the effect of restoration of the suit was the same, as there was no dismissal of the suit on the adjourned date. Only the order of dismissal passed on the adjourned date was set aside. All the previous proceedings and orders were sustained including the order that the suit shall proceed ex parte. Clarifying the position, it was held that, restoration of suit was placed in the same position in which it was just before the dismissal of the suit and the trial court was required to proceed ex parte against the applicant. It was further held that, when a suit is proceeding ex parte, not only the defendants are not entitled to any notice in future, but it is also his duty to appear suo moto in Court and to apply for setting aside exparte proceeding, if he wishes to be heard in defence of the suit. 8. Bombay High Court in Venutai Moriram Ghongde v. Sadashiv Parashramji Madghe and Ors. (AIR 1975 BOMBAY 68) held that, when a previous suit against 3 defendants was dismissed for default for non appearance of the plaintiff on the date of hearing, but in the absence of one defendant alone, a subsequent suit against the same defendant on the same cause of action was not barred by the provisions of Order IX Rule 9 CPC not against all the three defendants, but only in so far as it related to defendant No.1. It was held that, dismissal of the previous suit as against the contesting defendants 2 and 3 should be taken to be one under Order IX Rule 3 CPC, so as to enable the plaintiff to bring a fresh suit as against defendants 2 and 3 by virtue of Order IX Rule 4 CPC. Essentially, court below made a distinction that, in relation to the defendant who remained ex parte on the first date of posting, dismissal of the suit on the adjourned date amounted to one under Order IX Rule 3 CPC and the restoration was governed by Order IX Rule 4 CPC. However, in relation to the defendants who were contesting the proceedings and in whose presence the suit was dismissed on a later day, it was under Order IX Rule 8 CPC and hence, the restoration was governed by Order IX Rule 9 CPC. 9. Himachal Pradesh High Court in H.P.Financial Corporation v. M/s.Puneet Printers and Another (AIR 2001 HIMACHAL PRADESH 13) held that, when a suit was dismissed for default under order IX Rule 3 CPC, on ground that neither the plaintiff or his counsel, nor the defendant or his counsel were present, defendants are not entitled to notice in a restoration application filed under Order IX Rule 4 CPC. To support the above conclusion, the Court relied on the decision in Babu's case, where it was held that, when a suit is dismissed under Order IX Rule 3 CPC and is restored under Rule 4, it does not lay down that notice should be given to the defendant. However, defendant is entitled to notice only when the suit is dismissed for default under Rule 8 in his presence. 10. In Pritam Chand v. Shamsher Singh (LAWS (P&H) 1986 1 22), it was held that, if a suit was dismissed under Order IX Rule 3 CPC in the absence of both parties, the Court had jurisdiction to restore the suit, without issuing notice to the opposite party, if sufficient cause was shown. This view was followed by Delhi High Court in Bhagat v. Ms.Usha Bhagat (AIR 1987 DELHI 74) wherein, it was held that, if a suit was dismissed for non appearance of the plaintiff in the absence of the defendant under Order IX Rule 3 CPC, it was not necessary for the Court to issue notice of restoration application to the defendant. This view was reiterated by the Orissa High Court in Binod Kumar Agarwala and Another v. Mst.Satyabhama Debi (AIR 1988 ORISSA 44) wherein, the Court held that, in any application under Order 9 Rule 4 CPC, notice to the defendant was not mandatory. 11. A perusal of the above decisions show that consistently all the courts have held the view that, if the dismissal was one under Order IX Rule 3 CPC, notice for restoring the suit under Order IX Rule 4 was not mandatory. On the other hand, if the application was one under Order IX Rule 9 CPC, notice was mandatory under Rule 9 subrule (2) of CPC. There cannot be any doubt on the above legal proposition since it is evident from the Statute itself. 12. However, the Nagpur Bench of Bombay High Court in Venutai's case made a distinction, in a case where some among the defendants remained absent on the first date of posting and after declaring them ex parte, the suit was taken forward and thereafter dismissed for the absence of the plaintiff, in the presence of the remaining defendants. It was held that, any application for restoration filed thereafter will be one under Rule 4 CPC, in so far as the ex parte defendants were concerned and one under Rule 9 CPC, in relation to the defendants in whose presence the suit was dismissed. Accordingly, the Court was of the view that, in such a case, notice was not required to be issued to the ex parte defendants, whereas, it was mandatory under Rule 9(2) CPC to other defendants. 13. The above finding of the Nagpur Bench does not stand to reason. There is nothing in the Rules which enables to reach such a conclusion. When some of the defendants remained ex parte, on the first date of posting, they are declared ex parte under Order IX Rule 3 CPC and the Court proceeded forward, thereafter, when the suit is dismissed under Order IX Rule 8 CPC, plaintiff is entitled to invoke Order IX Rule 9 CPC and the notice under Order IX Rule 2 CPC is liable to be issued to the “opposite party”. When the suit is dismissed for default on the adjourned date, there is no dismissal as far as the contesting defendants are concerned and there is no decree in their favour. When the suit is dismissed for default on the adjourned date, there is no dismissal as far as the contesting defendants are concerned and there is no decree in their favour. There is only an order of dismissal of the suit. I cannot justifiably agree with the decision of the Bombay High Court Venutai's case. Whether order is one under Order IX Rule 3 CPC or Order IX Rule 8 CPC is to be decided on the basis of the State of the suit on the date of its dismissal. However, the consistent view seems to be that, if the application is one under Order IX Rule 4 CPC, notice is not to be issued to the ex parte defendants. Consequently, if the application is one under Order IX Rule 9 CPC, notice is mandatory under Rule 9(2) CPC. This is the settled legal position. 14. Applying the legal principle, it has now to be decided whether in the case at hand, notice ought to be issued to the defendants who were declared ex parte on the first date of posting. It seems that the suit was dismissed on the subsequent date in the presence of some defendants. Essentially, dismissal under Order IX Rule 4 CPC and Order IX Rule 8 CPC refers to two different scenario. Order IX Rule 4 CPC applies in a case where the defendants remains absent on the first date of posting. Thereafter, some of the defendants appear, Court proceeds further and dismissal of the suit thereafter can only be one under Order IX Rule 8 CPC and restoration should be governed by Order IX Rule 9 CPC. Necessarily, in this case also, application was one filed under Order IX Rule 9 CPC and notice is liable to be served on the “opposite party”. 15. The next question that is to be considered is whether opposite party will include the defendants who had remained ex parte on the previous posting. The Calcutta High Court in Dulal Chandra Chowdhury v, Atul Krishna Roy and Ors. (AIR 1935 Calcutta 506) had occasion to consider the question whether, in an application to set aside the ex parte, the exparte defendants should also be made parties. It was held that, there was no provision in the Code for naming the persons in whose favour ex parte decree was passed as parties in the application to set aside such decree. It was held that, there was no provision in the Code for naming the persons in whose favour ex parte decree was passed as parties in the application to set aside such decree. All that was necessary was that, there was an indication in the application of the particulars of the suit in which the ex parte decree has been passed. A Division Bench of the Calcutta High Court in Sushil Kumar Chowdhury and Ors. V. Annada Prasanna Lahiri and Ors. had occasion to consider whether in an appeal against dismissal of an application filed under Order IX Rule 13 of the CPC for setting aside ex parte preliminary decree, the Lrs of other deceased defendants should also be brought on the party array. That was a case wherein some of the defendants remained ex parte and decree was granted in favour of the plaintiff against one defendant alone. The defendants filed application to set aside the ex parte decree. The question arose whether notice should be issued by the Court. It was held that the term “opposite parties” found in Order IX Rule 13 CPC of 1908 would mean the plaintiffs, who obtained an ex parte decree against the defendants and notice was to be given to the plaintiffs. There was no necessity to issue notice to the other co-defendants. 16. In Ratnakar Ray and Ors. V. Kulamoni Roy and Ors. (AIR 1951 ORISSA 266) the question whether the term opposite party would include uncontesting defendants arose. That was a case wherein the defendants filed written statements but, only some contested the suit. There was no order declaring ex parte against the uncontesting defendants. Since no steps were taken by the plaintiff, suit was dismissed under Order IX Rule 8 CPC. The Division Bench of the Orissa High Court held that, restoration application ordered after issuing notice only to the contesting defendants was wrong being one in contravention of Order IX Rule 9(1) CPC and it ought to have been issued to the other co-defendants who though uncontesting, were not declared ex parte. 17. It is pertinent to note that though Order IX refers to the parties as plaintiffs and defendants, Order IX Rule 9(2) CPC refers to “opposite party”. Same terminology is found in Order IX Rule 14 CPC also. 17. It is pertinent to note that though Order IX refers to the parties as plaintiffs and defendants, Order IX Rule 9(2) CPC refers to “opposite party”. Same terminology is found in Order IX Rule 14 CPC also. It is clear that the use of the term “opposite party”, instead of referring as plaintiff or defendant is not without any reason. If the term “opposite party” is used with reference to all other parties to the proceeding, another appropriate terminology would have been used. It cannot be said that, term opposite party used therein is without any significance. Taking a cue from the above decision, it can be explained that, it can have only the meaning of “opposing party” and not defendants or some of the defendants, who remained absent. That means those who had appeared in the suit at any stage and opposed the claim of the other side. Otherwise, it will lead to a situation wherein even when the some of the defendants remained ex parte at the threshold, still, while invoking Order IX Rule 9 CPC, notice has to be issued to all of them. This seems to be inconsistent with the decisions referred to above. 18. A recapitulation of the above decision leads to the conclusion that, in an application filed under Order IX Rule 4 CPC, notice to the ex parte defendants is not mandatory. However, if the application is filed under Order IX Rule 9 CPC, notice is mandatory to the contesting party and not to the defendants who had already been declared as ex parte. This interpretation would avoid incongruous situations. After having been declared ex parte, defendants cannot have any right to being heard in the normal process of the judicial proceedings thereafter in the suit, unless a right to oppose arises by way of limitation. Consequently, the reasoning given by the court below in dismissing R.P.No.219 of 2019 does not appear to be legally sustainable. The revision is liable to be allowed holding that, court below shall now issue notice in I.A.No.174 of 2019 only to the contesting defendants and not to the defendants who have been declared ex parte. Original petition is allowed of as above.