SURENDRA KUMAR Vs. PAPPU ALIAS JITENDRA

JUDGEMENT

(1.) Being aggrieved by the order dated 14-1-2005 passed by Additional District Judge, Shujalpur in MJC No. 26/2004, whereby the application filed by the appellant under O. 9, R. 4, C. P. C. for setting aside the order dated 5-11-2004 and for restoration of Civil Suit No. 12-A/01 has been dismissed, the present appeal has been filed.

(2.) Short facts of the case are that appellant filed a suit for declaration and permanent injunction against the respondent in the Court of Additional District Judge, Shujalpur. This suit was registered as 152-A/01 and was fixed for 12-3-2003 on the application filed by the appellants under O. 6, R. 16, C. P. C. On this date at the time when case was called, neither appellants were present nor counsel was present. Hence learned Court below dismissed the suit in default. Immediately, thereafter an application under O. 9, R. 4, C. P. C. was filed by the appellants wherein it was prayed that order be set-aside on the ground that Appellant No. 3, who is also an Advocate appeared in the Court at about 12 o'clock. At that time Court was busy in sessions trial. It was also alleged that Vishnu Narayan Joshi is counsel for appellants No. 1 and 2, who is not well, therefore, he could not appear before the Court. The application was registered as MJC No. 26/04. Application was opposed by the respondents on various grounds and it was prayed that application filed by the appellants be dismissed. After recording of the evidence learned Court below dismissed the application. Aggrieved by the impugned order dated 14-1-2005, present appeal has been filed.

(3.) Learned counsel for the appellants submit that impugned order passed by the Court below is illegal and deserves to be set-aside. It is submitted that application was filed on that very date.