SHIV DEV SINGH Vs. TEJA SINGH AND ANR.

JUDGEMENT

(1.) THE suit of the Plaintiff for possession of is bighas 16 biswas of agricultural land against Teja Singh and Gajan Singh was dismissed for default on 25 -7 -2004. On that date, the Defendants were present and the order was thus apparently one under Order 9, Rule 8, Code of Civil Procedure. An application for revival of the suit was filed on 20 -8 -2004 and was dismissed on 26 -11 -2004 when nobody from either side was present. An appeal was preferred in the Court of the District Judge, Barnala who dismissed it holding that no appeal lay against the order of the trial Court dated 26 -11 -2001. It is not disputed that the order dated 25 -7 -2004 being in the nature of a decree was appealable and that an application for setting aside the dismissal could also be made under Order 9, Rule 9, Code of Civil Procedure. The appeal against the dismissal of the application for restoration was filed obviously under Order 43, Rule 1, Sub -clause (c), Code of Civil Procedure which gives a right of appeal against an order under Rule 9 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. It is contended by Mr. Daya Sarup that the order dated 26 -11 -2004 dismissing the application for restoration was one under Order 9, Rule 3, and an appeal against that order could not lie. I am unable to accept this contention, because the order dated 26 -11 -2001 whether it was made in the presence of the Respondent or in his absence, was one of rejection of the application for an order to set aside the dismissal of the suit made on 20 -8 -2004. Mr. Nehra would admit that if the application made on 20 -8 -2004 had been dismissed on merits, (sic) appeal could lie to District Judge under Order 43, Rule 1, Sub -clause (c), Code of Civil Procedure. That sub -clause does not prescribe that an appeal against rejection of an application on merits would only be entertainable. It also contemplates an appeal against an order made in the absence of the Plaintiff rejecting the application for setting aside the order dismissing the suit. Whether the application for restoration of the suit is dismissed on merits or default, the order rejecting the application for an order to set aside the dismissal of the suit is necessarily one under Order 9, Rule 9, Code of Civil Procedure I, therefore, hold that an appeal lay to the lower appellate Court and accepting the revision remand the appeal to the District Judge, Barnala, for disposing of it in accordance with law. The Respondents shall pay the costs of this revision to the Plaintiff. The parties' counsel have been directed to cause them to appear in the Court of the District Judge, Barnala on 15 -7 -1950.