RAJ RANI SRIVASTAVA Vs. DISTRICT JUDGE LUCKNOW

JUDGEMENT

(1.) BRIJESH Kumar, J. This writ petition has been filed impugning the order passed by the learned District Judge, allowing the revision preferred by the opposite parties Nos. 2 to 4, setting aside the order passed by the trial court by which the Trial court had allowed the application of the petitioner/plaintiff under Order IX Rule 9 CPC and restoring the suit to its original number.

(2.) I have heard learned counsel for the petitioner and the learned counsel appear ing for opposite parties Nos. 2 to 4.

(3.) THE plaintiff moved an application under Order 9 Rule 9 of the Code of Civil Procedure for setting aside order dated 23-9-77 dismissing the suit. THE application was, however, contested on the ground that the application under Order 9 Rule 9 of the Code of Civil Procedure was not maintainable since the suit was dismissed on 23-9-77 not because of non appearance of the plaintiff but for non payment of costs imposed on the plaintiff while allowing amendment of the plaint. THE Civil Judge, Lucknow, however, by order dated 5-1-81, allowed the application moved by the petitioner under Order IX Rule 9 of the Code of Civil Procedure holding that the suit would be taken to have been dismissed in default of the plaintiff. THE defen dants/opposite parties, however, challenged the order passed by the Civil Judge by filing a revision which was allowed by Opposite Party No. 1, namely, the learned District Judge by order dated 5-8-1982 holding that order dated 23-9-77 could not be said to have been passed under Order IX Rule 8 of the Code of Civil Procedure, hence the ap plication under Order IX Rule 9 of the Code of Civil Procedure was not maintainable. A copy of the order passed by the learned District Judge has been filed as Annexure-9 to the writ petition. THE controversy, thus, involved in the present petition is as to whether the order dated 23-9-77 was an order dismissing the suit in default passed under Order Ix Rule 8 of the Code of Civil Procedure or it was an order passed under Section 35-B of the Code of Civil Procedure dismissing the suit for non compliance with the order of payment of costs to the defen dants on account of amendment of plead ings by the plaintiff.