R.P. CHITRAKAR Vs. BHAWANI

JUDGEMENT

(1.) THIS revision is directed against the order dated 5.3.1997 passed by the Civil Judge, Class -I, Panna in MJC No. 1/96, dismissing the MJC under Order 9, Rule 9 of the Code of Civil Procedure for restoration of Civil Suit No. 4 -A/90. The applicant/plaintiff filed the instant civil suit for declaration of title and possession of House No. 823 Ajaygarh, Panna. 21.11.1995 was the date fixed in the suit for the evidence of the applicant/plaintiff. The applicant however, could not appear before the Court on account of ailment of Harnea and the Court proceeded against the applicant and dismissed the suit under Order 17, Rule 3 of the Code of Civil Procedure read with Order 9, Rule 8 of the Code of Civil Procedure. The applicant having come to know the dismissal of the suit, made an application under Order 9, Rule 9 of the Code of Civil Procedure along with an application under section 5 of the Limitation Act for restoration of the suit, dismissed in default, condoning the delay in filing the restoration application. But the same has been rejected by the trial Court vide impugned order holding that despite sufficient opportunity given to the applicant he failed to adduce his evidence and the case was dismissed under Order 17, Rule 3 CPC and not under Order 17, Rule 2 CPC and rejected the limitation application for having failed to show sufficient cause for condonation of delay in filing the petition under Order 9, Rule 9 CPC for restoration of the suit.

(2.) SHRI Rohit Arya, counsel for the applicant, has contended that the Court below wrongly held that the suit was dismissed under Order 17, Rule 3 CPC; whereas the suit was dismissed under Order 17, Rule 2 read with Order 9, Rule 8 CPC. The impugned order is, therefore, bad in law. It is evident from the impugned order that the suit was dismissed in absence of the applicant/plaintiff under Order 17, Rule 3 CPC and not under Rule 2. The question for consideration is whether the dismissal of the suit by the trial Court, which was expressly done by it under Rule 3 of Order 17 of the Code of Civil Procedure, should be deemed to be one made under Rule 2 of Order 17 read with Rule 8 of Order 9 of the Code. In an identical case Justice T.P. Naik (as he then was) in Govardhan v. Ganesh (1962 JLJ 760 = 1962 MPLJ 325) held;