DELHI BITUMAN SALES AGENCY Vs. RAWLA CONSTRUCTION COMPANY

JUDGEMENT

(1.) With the consent of the parties matter has been heard and disposed of finally.

(2.) . Suit of the plaintiff was dismissed by the Trial Court by order dated 10th July, 1984. On the said date the counsel for the plaintiff was present in court and he submitted to the court that since the plaintiff has not contacted him, he could not take steps for summoning of the witnesses. He, accordingly, requested for an adjournment. The court was, however, of the view that no adjournment could be granted and dismissed the suit for want of instructions and non-prosecution. An application was thereafter filed by the plaintiff under Order 9 Rule 9 of the Code of Civil Procedure read with Order 17 Rules 2 and 3. By an order dated 10th July, 1984, the application was dismissed by learned Additional District Judge on the ground that as the suit was dismissed on the ground of non-prosecution, an application under Order 9 Rule 9 of C.P.C. was not maintainable. This order of learned Additional District Judge has now been challenged by way of the present petition.

(3.) . Learned counsel for the petitioner has relied upon a Full Bench judgment of the Madhya Pradesh High Court reported as Ramarao Marotirao and Others v. Shantibai, 1977 Madhya Pradesh Law Journal 364 to contend that if a suit has been dismissed under Order 17 Rules 2 and 3 in the presence of the parties, the application under Order 9 Rule 9 of C.P.C. was not barred. In the aforesaid judgment, it was held as under :-