RAMSAHAY DAROGA Vs. ARUN KUMAR DAROGA

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution challenges the order dated 30.6.2008 (Annexure P -1) and 13.2.2007 (Annexure P -2). The petitioner/plaintiff's suit was dismissed for want of prosecution on 9.3.2001. Against that the plaintiff filed an application for restoration which was decided by Court below on 30.1.2002 (Annexure P -3). The suit was directed to be restored to its original number by directing the plaintiff to deposit Rs. 500/ - as cost within ten days. The petitioner did not deposit the cost and preferred appeal against the order dated 30.1.2002. The said appeal was registered as appeal No. 13/2002.

(2.) LEARNED counsel for the parties fairly admit that the said appellate order is not placed on record but the appeal was dismissed. Thereafter, the petitioner filed an application under Order 9 Rule 9 read with Section 151 C.P.C. (Annexure P -4). In this application it was prayed that the petitioner has not suppressed any material facts. Erroneously he could not deposit Rs.500/ - as directed by the Court while restoring the matter. In these circumstances, it is prayed that the petitioner be excused and he be permitted to deposit the amount of cost and his main suit 82 -A/2000 be restored to its original number. The trial Court rejected the said application on 30.6.2008.

(3.) SHRI Lokendra Shrivastava submits that second application under Order 9 Rule 9 CPC was not maintainable. The Court below has not committed any legal error which warrants interference by this Court under Article 227 of the Constitution. He supported the impugned order.