VINAYMAN SINGH Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) Heard Sri A.K.Trivedi, learned counsel for the petitioner and Sri S.K.Mishra, learned counsel appearing on behalf of the respondents.

(2.) By means of the present writ petition, the petitioner is challenging the order dated 28.01.2002 passed by the Additional District Judge, Court No.3, Fatehpur whereby the revision filed by the respondents against of Civil Judge (Senior Division), Fatehpur dated 31.01.2001 in Misc. Case No.142/74/97 has been allowed.

(3.) Brief facts of the case are that the petitioner filed the SCC suit no.5 of 1979 before Civil Judge (Senior Division), Fatehpur for eviction, being the landlord of the property in dispute. During the pendency of the suit, an amendment application has been filed, which has been allowed at the cost of Rs.150/-. It appears that time was given till 20.10.1997 for deposit of cost and 21.10.1997 was the date fixed for evidence. On 21.10.1997 the suit has been dismissed on account of non-deposit of cost. Civil Judge (Senior Division) passed as order "Cost not paid in compliance of order dated 13.10.1997 suit stand dismissed with cost vide order dated 13.10.1997". The petitioner moved a composite application under Order 9 Rule 9 and Section 148 of C.P.C. on the ground that the petitioner was ill and therefore, could not attend the Court on the date fixed and prayed for setting aside the order dated 21.10.1997 The said application has been allowed by Civil Judge (Senior Division) and the order dated 21.10.1997 has been recalled on the cost of Rs.150/- and the case has been restored back to its original number. Being aggrieved by the order, the respondent filed revision, which has been allowed by the impugned order. The revisional authority has held that the suit has been dismissed on the ground that the cost has not been deposited and not on account of non-appearance of the plaintiff. The application under Order 9 Rule 9 C.P.C. and under Section 148 was not maintainable. The plaintiff ought to have file the appeal against the order dated 13.01.2001.