DURGESWAR BORDOLOI Vs. TRISHNAGAON KHOWA

JUDGEMENT

(1.) This is an appeal under Rule 43 Rule 1(c) of the Code of Civil Procedure, 1908, preferred against the Order dated 25.6.2004 passed by the learned Additional District Judge, Nagaon in T.S. (D) Case No. 31/02 dismissing the suit for want of evidence as well as the order dated 05.08.2005, passed by the learned Additional District Judge in M.J. Case No. 120/04, arising out of T.S. (D) No. 31/02, whereby the petition filed by the plaintiff under Order 9 Rule 9 read with section 151 Code of Civil Procedure (in short "CPC") for restoration of T.S. (D) No. 31/02 was rejected. The appellant as plaintiff had instituted a suit against the respondents as defendants before the Court of the learned Additional District Judge, Nagaon under Section 7 of the Hindu Marriage Act, 1955 for a decree declaring that the respondent No. 1 is not a legally married wife of the appellant and that the respondent No. 2 is not the daughter of the appellant. The suit was registered and numbered as T.S. (D) No. 31/02. The respondent No. 1 had entered appearance in the suit and had filed her written statement.

(2.) By an order dated 31.05.04, it appears that last chance was given to the plaintiff to adduce evidence on 31.05.04. On 31.05.04 also, the plaintiff prayed for adjournment which was allowed subject to the payment of cost of Rs. 50/-. The case was fixed on 25.06.04. On that date also the plaintiff filed a petition which came to be rejected by the order dated 25.06.04, as noted hereinabove.

(3.) Against the said order dated 25.06.04, the plaintiff filed a petition under Order IX Rule 9 read with section 151 of CPC, which was registered as M.J. Case No. 120/04. The learned Trial Court rejected the said petition holding that the petition filed for restoration under Order IX Rule 9 of CPC was not maintainable in view of the fact that the order dated 25.06.04, passed under Order XVII Rule 3 of CPC, is an appealable order.