SUKHDEV DAS Vs. YASHODA BAI

JUDGEMENT

(1.) The plaintiffs' suit for declaration of title and permanent injunction filed on 16.12.94 was dismissed by the trial Court for want of prosecution on 29.6.2001 as his counsel pleaded no instructions on behalf of the plaintiff. She filed an application under Order 9 Rule 9 of the CPC for restoration of her civil suit, which was rejected by the trial Court and upheld by the Misc. Appeal Court in appeal preferred by the plaintiff under Order 43 Rule 1(c) of the CPC, against which, this civil revision has been preferred questioning the order rejecting application under Order 9 Rule 9 of the CPC as well as the order passed in Misc. Appeal affirming the original order.

(2.) Mr.Manoj Paranjape, learned counsel for the petitioners, would submit that the plaintiff's counsel before the trial Court did not issue any notice for pleading no instructions on behalf of the plaintiff on 29.6.2001, but pleaded no instructions and consequently suit was dismissed for want of prosecution since the plaintiff's counsel did not inform the plaintiff right in time before pleading no instructions, that constitutes sufficient cause within the meaning of Order 9 Rule 9 of the CPC and the trial Court as well as the Misc. Appeal Court both are absolutely unjustified in rejecting the application, as such, the orders dated 29.6.2001 & 13.1.2010 passed by the trial Court and order dated 23.9.2017 passed by the Misc. Appeal Court deserve to be set aside and the suit be restored to its original number for hearing and disposal in accordance with law from the stage where it was dismissed.

(3.) On the other hand, Mr.D.N.Prajapati, learned counsel for respondents No.1 to 3, would support the impugned order and submit that both the Courts below are justified in rejecting the application, as such, the instant civil revision deserves to be dismissed.