OM DAIRY Vs. PUSHPA SINGHAL

JUDGEMENT

(1.) THE respondent/plaintiff filed a suit for recovery of possession and damages/use & occupation charges against the petitioner/defendant herein.

(2.) THE respondent/plaintiff filed an application under Order 9 Rule 9 CPC read with Order 7 Rule 14 and Section 151 CPC which came up for consideration on 15th March, 2013. In the application the respondent/plaintiff sought orders for recalling the case allowing the plaintiff to cross -examine the defendant and for placing on record additional documents. However vide noting dated 8th July, 2013 in the application the learned counsel noted in hand that he was pressing the application only under Order 9 Rule 9 CPC and would file a separate application under Order 7 Rule 14 CPC, if the suit is allowed to be restored. It is thus apparent that subject to restoration the respondent did not press the rest of the reliefs. On 8 th August, 2013 the suit was restored to its original number and at the stage at which it was pending on 20th February, 2013. Thereafter on 9th September, 2013 two witnesses of the defendant i.e. DW -3 and 4 were crossexamined.

(3.) AGGRIEVED by the order dated 20th November, 2014 the petitioner prefers the present petition. The grievance of the petitioner is that the application wherein the impugned order was passed was not maintainable as the said relief had been withdrawn in the composite application filed by the respondent/plaintiff under Order 9 Rule 9 CPC wherein while withdrawing the other reliefs no right was reserved for filing any further application nor the permission was sought.