P L D 1965 Dacca 369 (PLP)

On 2‑10‑61, the following order was passed:‑ "Parties file no hazira. Parties take no steps to‑day. No service of summon on the defendant is required as the original suit restored to file at the instance of the defendant. To 16‑I1‑61 for fixing the peremptory date." On 16‑11‑1961 also the parties took no steps and 7‑12‑1961, was fixed for peremptory hearing. On this date, as stated above, the suit was decreed ex pane. Mr. Bose appearing in support of the Rule contends that the petitioner came to his lawyer after restoration of the suit as a consequence of the order dated 23‑9‑1961 passed in Miscellaneous Case No. 96 of 1961 and he gathered that notice of the suit would be served upon him in due course and having remained in expec tation of such notice, failed to get the same and thereafter in the early part of February 1962, he came to know of the fact that the suit had been decreed ex parte on 7‑12‑

61. The learned pleader who was approached by the petitioner also supports him in view of the order dated 26‑9‑1961, which was understood in the sense that notice would be served. Mr. Bose contends at the first instance that a notice ought to have been issued in due course and that if no notice had been issued, it was a fit case for consideration that there was sufficient cause for the petitioner not to appear in Court when the case was called on for hearing. Mr. Hafez, on the other hand, contends that there is no provision in law to issue a notice for the second time in a case like this particularly when the defendant himself was the petitioner in Miscellaneous Case No. 96 of 1961 and succeeded in that case. He further contends that at any rate the application as filed on 21‑6‑1962 is barred by limitation. Both the Courts below have taken the view that there was no necessity for service of notice upon the defendant in the circumstances of the present case particularly when the petitioner himself was responsible for having the ex parte decree as passed on 4‑4‑1961 set aside and the original suit restored on 23‑9‑1961. It has also been found that the defendant‑petitioner deliberately and intentionally did not take any step and did not appear when the suit was called on for hearing on 7‑12‑61 although he was fully aware of the date he absented himself without any sufficient cause and also without any bona fide reason. To us it seems a case where if the petitioner succeeds in showing that the law required a fresh service of notice after the suit had been restored to its original file and number then certainly the admitted position being that no such notice had been issued, no question of limitation would arise. But it is difficult to agree with the learned Advocate for the petitioner that in a case like this notice ought to have been served for the second time. It being not disputed that summons had been issued in terms of Order V, rule 1 of the Code of Civil Procedure there is no provision in the Civil Procedure Code requiring the plaintiff .to issue fresh summons after the suit is restored to its original file the ex parte decree being set aside at the instance of the defendant. Mr. Bose relies upon a decision in the case of Mool Chand v. Ganga Sahai (I L R 55 All. 684), in which it was held that the defendant was of right entitled to a notice of the hearing of the suit. That case was however, started under Order IX, rule 4 of the Code of Civil Procedure where the suit had been dismissed for default not only on the part of the plaintiff but also on the part of the defendant. It was, therefore, observed by the learned Judge at page 686 as follows:‑ "In this case both the plaintiff and the defendant were absent on the original hearing. When the plaintiff is allowed a second chance by having the application for restoration granted, it appears to me inequitable that the defendant should not have notice of the date fixed for the hearing." That chance was given to the plaintiff on his prayer. In fact the application by the plaintiff was heard asking for restoration without service of notice of the application on the defendant. The defendant did not appear accordingly. This application for restoration was allowed and the suit was fixed for hearing on a subsequent date. The defendant had no notice of the subsequent date as well and did not appear and the suit was decreed ex parte. In the circumstances of that case, the learned Judge thought it inequitable that the defendant should not have notice on the date fixed for hearing. In the present case, however, the facts are quite distinguishable. The defendant himself being responsible for setting aside the ex parte decree in terms of Order IX, rule 13 of the Code of Civil Procedure could be expected to know the provisions thereof and it would be in the fitness of things to assume that he knew that it was the duty of the Court allowing an application under Order IX, rule 13 of the Code of Civil Procedure to appoint a day for proceeding with the suit. In our view, there is no provision in the Code of Civil Procedure which requires that when a suit of this description is restored to its original file and number, it should proceed again from the stage where it started. On the other hand, we are inclined to think than it should proceed from the stage where it was before the ex parte decree was passed. In that view of the matter, it is not unreason able to expect that the parties should be diligent to get themselves ready for taking such steps as might be necessary in the interest of the plaintiff or of the defendants, as the case might be. It has been found by the Courts below that the petitioner and his lawyer were responsible for gross and wilful negligence. In the face of such a finding we do not think that there was any diligence on the part of the petitioner as the law required. Apart from the fact that the order dated 2‑10‑1961, as quoted above seems to have been a right order, we are of the opinion that in the circumstances of the case the law never required the Court to give fresh notice upon the defendant whose duty was to keep himself abreast with the course of events that might happen in regard to further proceeding of the suit. On the question of limitation, we are also of the opinion that in view of the finding that the defendant‑petitioner delibe rately and intentionally did not take any step and did not appear when the suit was called on for hearing on 7‑12‑1961 although he was fully aware of the date, it is not possible for us to hold that the application was not barred by limitation. If it was a duty on the part of the defendant, as in the circumstances of the present case it was, to keep himself aware of the various stages of the suit after it had been restored to its original file and number at his instance, he cannot plead ignorance of the fact that the suit had been decreed ex parte again in due course on 7‑12‑1961. As such both the contentions of the learned Advocate for the petitioner, therefore, fail. The result, therefore, is that this Rule is discharged but we make no order as to costs keeping in view the circumstances of the case. SALAHUDDIN AHMED, J.‑--I agree. K. B. A. Rule discharged.