BADRI NARAYAN SHRIVASTAVA Vs. SHIV NARAYAN SHRIVASTAVA

JUDGEMENT

(1.) By this re- vision under Sec. 115 C.P.C. the present applicant (who is defendant in civil suit 4129 of 1994) has challenged the order dated 7.4.1995 of the Court of IVth Civil Judge, Class-I, Jabalpur passed in M.J.C. 211/94 directing restoration of the above mentioned civil suit, under Order 9, Rule 4 C.P.C. The suit was dismissed on the statement made by the counsel for both the plaintiffs in that suit that they have compromised the matter outside Court.

(2.) Learned counsel Shri Qamrudding appearing for the applicant defendant submits that application for restoration of the suit only at the instance of only one of the plaintiffs was not competent. Since the suit was not dismissed for non appearance of parties Under Rule 3 of Order 9 C.P.C. no application under Rule 4 of Order 9 was competent He also submitted that the application was barred by limitation prescribed in article 122 of the Limitation Act 1963. It is further contended on behalf of the applicant that without notice and hearing to the present applicant as defendant to the suit, the said suit, dismissed on compromise by them outside Court, could not have been restored.

(3.) Shri P.C. Paliwal appearing for the non-applicant made attempts to support the order, on the question of limitation it is submitted that the limitation expired on a non working day, therefore, the application filed on the next available working day was not barred by 2 days as it contended on behalf of the applicant.