RAM KISHORE TIWARI Vs. CHHATHI LAL TIWARI

JUDGEMENT

(1.) Heard finally with the consent of the parties.

(2.) This petition has been filed by the petitioner/ plaintiff under Article 227 of the Constitution of India against the order dated 2.5.2017 (Annexure P-1) passed by the Second Civil Judge Class-II, Churhat District Sidhi in Misc. Civil Appeal No.15/2015 as also against the order dated 11.9.2018 (Annexure P4) passed by the Second Additional District Judge, Sidhi in Misc. Civil Appeal No.3/2017. Vide impugned order dated 2.5.2017 the petitioner/plaintiff's application under Order 9 Rule 4 of CPC for restoration of civil suit has been rejected and vide order dated 11.9.2018 the appeal preferred against the aforesaid order has also been dismissed on the ground that on the ground of it being not maintainable. Hence, both these orders have been challenged by the petitioner in this petition.

(3.) The brief facts of the case are that Civil Suit No.151-A/2015 was filed by the petitioner/plaintiff for permanent injunction in the Court of Second Civil Judge Class-II, Churhat District Sidhi. In the aforesaid suit notices were issued to the defendants on 7.9.2014 and the counsel appearing for the plaintiff was directed to pay the process fee within three days' time for issuance of notice in respect of the application filed under Order 39 Rules 1 and 2 of CPC and the case was fixed for 21.9.2015, however when the matter came up for hearing on 21.9.2015, it was found that the plaintiff has not paid the process fee in time, hence the suit was dismissed under Order 9 Rule 4 of CPC on account of non-payment of process fee. On the very next day i.e. 22.9.2015 an application under Order 9 Rule 4 of CPC was filed for restoration of the aforesaid suit. In the said application the plaintiff averred that although the order was passed by the trial Court issuing the notices to the defendants but as the defendants were not residing at Baghau, hence the plaintiff's advocate asked the plaintiff to find out the correct address of the defendants, and as the plaintiff was in disposed of from 8.9.2015 to 16.9.2015 and thereafter on 21.9.2015 when they appeared before the Court to pay the process fee, they came to know that the aforesaid suit has already been dismissed for nonpayment of process fee. Thus it was stated that there was no negligence on the part of the plaintiff to pay the process fee and he was prevented by the bonafide reasons in paying the process fee.