RAM PYARI BAI Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the order dated 12.5.2000 in M.J.C. No. unregistered 2000, whereby an application for restoration of Civil Appeal No. 26 -A/90, was dismissed summarily.

(2.) BRIEF facts leading to the present appeal are that the appellants filed the aforementioned appeal against the judgment and decree dated 13.7.1990 in Civil Suit No. 94 -A/87 by Civil Judge Class -II Harda. The said appeal was dismissed in default on 27.4.2000. An application was filed for restoration of the said appeal. It appears that in the said application, it was mentioned that it was filed under Order 9 Rule 9 CPC. The learned lower Appellate Court by the impugned order dismissed the said application summarily by observing that the application has been filed under Order 9 Rule 9 CPC, while there is a specific provision for restoration of the appeal: hence, the application was not tenable.

(3.) THE contentions as above appear to be justified. There was no justification for the Lower Appellate Court to have dismissed the appeal, merely because the application praying for restoration, was purportedly filed under Order 9 Rule 9 CPC, as mentioned therein. In fact, the learned lower Appellate Court should have treated it as an application under Order 41 Rule 19 CPC, and should have proceeded to decide it on merits.