PRATHVI RAJ SINGH AND OTHERS Vs. KRISHAN GOPAL

JUDGEMENT

(1.) This civil revision under Sec. 115 of Civil Procedure Code has been filed by the applicants against the order dated 17.06.2013 passed by Second Additional District Judge, Sheopur in Miscellaneous Civil Appeal No. 17/2013, setting aside the order dated 19.12.2012 passed by Second Civil Judge Class I Sheopur in Miscellaneous Civil Case No. 15/2011 by which the trial Court initially rejected the application under Order 9, Rule 9 of Civil Procedure Code for restoration of original Civil Suit No. 76/2005 (New No. 109/2008).

(2.) The short facts of the case are that the respondent has filed a civil suit for permanent injunction in respect of agricultural land survey No. 843, 844, 848, 849 and 854 total area 7.034 hectare situated at village Baroda Tehsil and District Sheopur (M.P.), which was registered as Civil Suit No. 76-A/2005. This suit was listed on 20.04.2010 for recording evidence of the plaintiff and earlier also the opportunities were given to the plaintiff for pursuing his evidence but on that date plaintiff and his witnesses were not present and prayer was made by the counsel for the plaintiff/respondent for adjournment. The learned trial Court, however, rejected the prayer and vide order dated 20.04.2010 dismissed plaintiff's suit for want of evidence. Thereafter, plaintiff moved an application under Order 9, Rule 9 of Civil Procedure Code seeking restoration of original suit No. 76/2005 which was registered as Misc. Civil Case No . 15/2011. This application was dismissed by the learned trial court holding that original suit was dismissed in the light of the provision of Order 17, Rule 3 CPC, therefore, the appeal is maintainable and no application for restoration under Order 9, Rule 9 Civil Procedure Code lies. Being aggrieved by the order passed by the trial Court, respondent/plaintiff filed an appeal before the District Judge which was allowed by the impugned order dated 17.06.2013, which is subject matter of this revision petition.

(3.) Learned counsel for the applicants submitted that the Second Additional District Judge Sheopur passed the impugned order ignoring the mandatory provisions contemplated under Order 17, Rule 3 of Civil Procedure Code and restored the civil suit without jurisdiction and contrary to law. Since the suit was dismissed under the provisions of Order 17, Rule 3 of CPC, the application under Order 9, Rule 9 Civil Procedure Code is not maintainable. Hence, the impugned order dated 17.06.2013, deserves to be dismissed. .