RIYAJ KHAN Vs. KASAM KHAN

JUDGEMENT

(1.) The applicants- defendant nos. 1 to 3 have filed this revision under Section 115 of the CPC being aggrieved by the order dated 17.1.2012 passed by the Ist Additional District Judge, Vidisha in Miscellaneous Civil Appeal No. 06/2011, whereby allowing the appeal of the respondent nos. 1 and 2 the order dated 2.3.2010 passed by Civil Judge, Class-I, Kurwai, district Vidisha in MJC No. 15/2008 dismissing the application of respondents filed under Section 5 of the Limitation Act and under Order 9, Rule 9 of the CPC for restoration of the Civil Suit No. 19-A/2003 (old number 132- A/1997) has been set aside and such suit is directed to be restored.

(2.) The facts giving rise to this revision in short are that the respondent nos. 1 and 2 herein filed above mentioned civil original suit against the applicants in the court of Civil Judge, Class-I, Kurwai, district Vidisha. In pendency of the suit, vide dated 7.9.1998, the trial court has closed the right of the applicants to file the written statement, on which the applicants have come to this court with C.R. No. 876/1999. In such revision some interim stay against further proceedings of civil original suit was given on 15.9.1999 and subsequently vide dated 18.9.2002 such revision was disposed of with a direction to the trial court to consider the written statement filed on behalf of the applicants. A copy of such order was placed by the applicants before the trial court on 1.9.2005. Subsequent to that on 7.9.2005, the applicants were present before the trial court in the civil original suit but no one appeared on behalf of respondent nos. 1 and 2. Consequently the suit was dismissed in default of appearance of respondent nos. 1 and 2. Subsequent to that the impugned proceeding under Order 9, Rule 9 of the CPC alongwith an application under Section 5 of the Limitation Act was filed on behalf of the respondent nos. 1 and 2 on 10.8.2007 and the prayer for condoning the delay in filing such proceeding was made in the aforesaid application of Section 5 of the Limitation Act and subject to outcome of such application, the prayer for restoration of the aforesaid civil original suit was made by application of Order 9, Rule 9 of the CPC.

(3.) After filing the reply of aforesaid application on behalf of the applicants and extending the opportunity of hearing to both the parties, on consideration, vide order dated 2.3.2010, the aforesaid application under Section 5 of the Limitation Act was dismissed by holding that sufficient cause for condoning the delay has not been made out. Pursuant to it, the proceeding of Order 9, Rule 9 of the CPC was also dismissed without examining the same on merits.