ORDER : 1. Heard Mr. Shashank Shekhar, learned counsel for the petitioners. 2. This case has been referred to the Division Bench vide Order dated, 03.08.2023 and the same reads as follows: “ Learned counsel for the petitioner submits that since the opposite parties have not appeared in the probate proceeding nor in the restoration application, it is not necessary to issue notice to the opposite parties. In support of his contention, he refers the order passed by a Co-ordinate Bench of this Court reported in 2011 (1) JLJR 304 [Anwari Begum and Ors. Vs. The State of Bihar (Now Jharkhand) and Ors.] On dismissal of an application, a valuable right accrues to the opposite party. If that order is recalled or set aside, the right which has already accrued to the opposite party gets extinguished. The right, which has accrued to a party even in his absence, cannot be taken away without hearing him. Same will violate the principle of natural justice. Allowing this application at this state, will mean taking away the right which has already accrued to the defendants, thus I feel that the same cannot be passed without noticing the opposite parties. Thus, I differ with the order, referred to above, by the learned counsel for the petitioners, reported in 2011 (1) JLJR 304 . Since there is a difference in opinion, let the matter be placed before the Division Bench after obtaining permission from Hon’ble the Chief Justice . 3. The petitioners in this application have prayed for quashing of the order dated 05.04.2023 passed in Civil Misc. Appeal No. 01 of 2023 by the learned Principal District Judge, Dhanbad, whereby and whereunder, the restoration application preferred by the petitioners under Order IX Rule 4 of the CPC read with Section 151 CPC along with an application under Section 5 of the Limitation Act, 1963 has been rejected. The petitioners have also prayed for quashing of the order dated 13.09.2022 passed in Original Suit No. 07 of 2021 by the learned Principal District Judge, Dhanbad, by which, the suit has been dismissed for non-prosecution. The petitioners by way of a consequential order have prayed for restoration of Probate Suit No. 07 of 2021 to its original file. 4. The petitioners have also prayed for quashing of the order dated 13.09.2022 passed in Original Suit No. 07 of 2021 by the learned Principal District Judge, Dhanbad, by which, the suit has been dismissed for non-prosecution. The petitioners by way of a consequential order have prayed for restoration of Probate Suit No. 07 of 2021 to its original file. 4. The question which falls for consideration in this case in terms of the order dated 03.08.2023 is as to whether notice is required to be issued to the opposite parties as according to the learned counsel for the petitioners no notice need be issued as in the facts and circumstances of the proceedings in Probate Case No. 07 of 2021 and Civil Misc. Appeal No. 01 of 2023 no valuable right has accrued to the opposite parties. Reference has been made before the learned Single Judge to the case of Anwari Begum & Ors. vs. The State of Bihar (Now Jharkhand) and Ors. 2011 (1) JLJR 304 , the relevant of which reads as follows: “ 2. According to law, only such of the respondents are entitled to notice of restoration who were present on the date when the case was dismissed for default.” 5. Mr. Shashank Shekhar, learned counsel appearing for the petitioners has referred to the case of V. Bhagat vs. Usha Bhagat , AIR 1987 Del 74 in which it has been held as follows: “ 6. When a plaint is presented, the Suit is thereby instituted under Order VI Rules 1 of the Code, and the Suit must forthwith be entered in the Register of the Civil Suits in accordance with Order IV Rule 2. It is made obligatory as per the High Court Rules and Orders that when a plaint is presented, the Court shall fix a short preliminary date in order to permit the examination of the plaint. On this preliminary date, the plaintiff is expected to appear to receive notice of the date fixed for hearing of the Suit. It sometimes happens that the plaintiff does not appear on this date and several cases have come to the notice of the Judges in which the Courts have forthwith dismissed the Suit for default by orders purporting to be made under Order IX. It sometimes happens that the plaintiff does not appear on this date and several cases have come to the notice of the Judges in which the Courts have forthwith dismissed the Suit for default by orders purporting to be made under Order IX. This procedure as per the High Court Rules and Orders is incorrect and it has been held that the preliminary date is not a date fixed for hearing and, therefore, the provisions of Order IX do not apply.” 6. In the case of Ratnakar Ray & Ors. vs. Kulamoni Roy & Ors. , AIR 1951 Ori 266 , it has been held as follows: “ 4. We have now to consider whether this omission invalidates the order. Mr. Misra, appearing for the opposite parties, has invited our attention to two decisions, one of Allahabad H.C. & the other of Bombay H.C., in support of his contention that the order was partly under O. 9, R. 3 & partly under O. 9, R. 8 according as it was against non-appearing defts. & the appearing ones. Those cases do, no doubt, spilt the order in that fashion. The references are Makundi Singh v. Pralhu Dayal, A.I.R.(13) 1926 All. 169 : (48 All. 97) and Damu Diga v. Vakrya Nathu, A.I.R.(7) 1920 Bom. 54 : (44 Bom. 767). Those cases, however, do not relate to a proceeding for restoration of the dismissed suit but concern with right to fresh suit on the same cause of action against those defts. who did not appear on the date of hearing of the previous suit. As the point as was considered by their Lordships, is not before us, I should reserve my opinion with regard to the correctness of these decisions with great respect for an occasion when it arises.” 7. Though in the case of V. Bhagat vs. Usha Bhagat (supra), it has been mandated that since the suit has been dismissed in the absence of the defendant it was not necessary for the Court to have issued notice of the restoration application to the respondents but in Ratnakar Ray & Ors. vs. Kulamoni Roy & Ors. (supra) a caveat has been put to the effect that in cases where the defendant had not appeared or having appeared but not filed any defence it is the discretion of the Court to serve notice upon the defendant. 8. vs. Kulamoni Roy & Ors. (supra) a caveat has been put to the effect that in cases where the defendant had not appeared or having appeared but not filed any defence it is the discretion of the Court to serve notice upon the defendant. 8. Whether a valuable right has accrued to the opposite party or not is levitating before us which needs to be accordingly answered. 9. The short facts indicate that the petitioners had filed a suit being Original (Probate) Suit No. 07 of 2021 in which vide order dated 21.12.2021 the petitioners were directed to deposit the Stamp Duty. However, the said order was not complied with and the petitioners were also not taking steps for consecutive six dates of hearing and consequently vide order dated 13.09.2022 the suit was dismissed for non- prosecution. Against such dismissal an application was preferred by the petitioners under Order IX Rule 4 read with Section 151 CPC for restoration of Original Suit (Probate) Case No. 01 of 2023 accompanied by an application under Section 5 of the Limitation Act but vide order dated 05.04.2023 the restoration application was dismissed on the point of limitation. This has constrained the petitioners to prefer the present Civil Miscellaneous Petition. 10. Neither in the original suit nor in the application for restoration notices were issued to the opposite parties. The Original Suit was dismissed at the threshold primarily on account of non-deposit of the Court fees and non- appearance for six consecutive dates. A right would have accrued to the opposite parties to be heard in this application if they in any manner would have put in appearance in either of the applications. In such circumstance, if notices are not issued in this application the right which had accrued to the opposite parties would have extinguished and their right to defend would also have been constricted and the same would lead to an illegality on account of the violation of the principles of natural justice. The facts of this case are entirely different to that of the scenario depicted above. No valuable right has accrued to the opposite parties to be noticed in this application on account of their absence for reasons which are apparent on the face of the record. We, therefore, affirm the view taken by the learned Single Judge in the case as Anwari Begum & Ors. No valuable right has accrued to the opposite parties to be noticed in this application on account of their absence for reasons which are apparent on the face of the record. We, therefore, affirm the view taken by the learned Single Judge in the case as Anwari Begum & Ors. vs. The State of Bihar (Now Jharkhand) and Ors. (supra). The issue placed before us having been answered, office is directed to list this case before the appropriate Bench.