RAMA SHANKAR Vs. BALAK DAS

JUDGEMENT

(1.) This is an appeal under Order XLIII Rule 1 (c) of C.P.C. by the plaintiffs/appellants, against an order dated 19th January 2005 in Civil Suit No.12/2003 passed by the Additional District Judge Sabalgarh, district Morena (M.P.), dismissing thereby the application filed under Order IX Rule 9 of C.P.C. for restoration of suit, which was dismissed in default of appearance of the plaintiffs and on pleading no instructions by their counsel, vide order dated 13th December 1999.

(2.) The facts, in short, just for decision of this appeal are that late Durga Prasad had earlier instituted a civil suit No. 28A/1989 for declaration, recovery of possession and permanent declaration against respondent/defendant with regard to the properties bequeathed by late Raghuveer Das by executing a Will dated 30th September 1988 in favour of Durga Prasad. During pendency of the suit, plaintiff Durga Prasad died and present appellants being his legal representatives were brought on record by substituting the deceased. Alongwith the suit, the application under Order XXXIX Rule 1 & 2 C.P.C. for temporary injunction was also filed by plaintiffs. Same was dismissed by an order dated 20/7/90. Aforesaid order of dismissal dated 20/7/90 was challenged by the appellants/plaintiffs before this court in Misc. Appeal No. 122/90. By allowing the appeal by an order dated 29th August, 91, this court directed the trial court for return of the plaint to the plaintiffs under Order VII Rule 10 C.P.C. for taking steps in appropriate forum. Being aggrieved by the order dated 29th August, 91 of this court, the appellants preferred the Intra-court Appeal being No.28/91 which was also dismissed by the Division Bench of this court being not maintainable with a liberty to the appellants to file review petition for considering the order dated 29th August, 91. During pendency of the review petition before this court, further proceedings in a pending suit before the trial court were stayed. On 30th September 1999, the appellants by filing the petition also informed the trial court regarding stay of the proceedings by this court. On 13th December 1999 when the case of the plaintiffs was called on, they were absent and their counsel pleaded no instructions, consequently, the suit of plaintiffs was dismissed in their absence. Subsequently, an application under Order IX Rule 9 C.P.C. for restoration of the original suit was preferred, which was dismissed vide order dated 19th January, 2005 by the trial court, hence, this appeal.

(3.) The submissions put forth on behalf of the appellants are that while passing the impugned order under appeal, the learned trial court fell in error in not following the various judgments passed by Hon. Apex Court as well as this court on the point involved in this case. It is submitted by the counsel that since further proceedings of the case were stayed by this court in the pending review petition, the plaintiffs/appellants were not present and they also did not contact their counsel as they were under impression that their matter would not be taken up owing to stay order granted by this court. It is further submitted that no information was received about final result of the review petition pending before this court and when the plaintiffs came to know through the public notice published in daily newspaper on 2nd August 2003, they filed the application under Order IX Rule 9 C.P.C. for restoration of their suit alongwith application under sections 5 and 17 of the Limitation Act for condonation of delay in submitting the petition but the learned trial Judge without considering the cause for delay in filing the application and without going through the application moved under sections 5 and 17 of the Limitation Act, dismissed both the applications, which action according to the learned counsel is not sustainable in law. Therefore, on the basis of the aforesaid submissions, it is prayed that by allowing the appeal, the order impugned may be set aside and the learned trial court may be directed to restore the suit to its original number and decide the same thereafter in accordance with law.