KARNI DAN SINGH Vs. RAM CHANDRA

JUDGEMENT

(1.) This appeal under Order 43 Rule 1 (d) read with Order 9, Rule 9, CPC is directed against the order dated 19-12-97 passed by Additional District Judge No. 1, Bikaner (hereinafter referred to as the trial Court') whereby the application filed by the plaintiff-appellant for restoration of the suit was dismissed for want of payment of process fee and filing of notices for service on defendant-respondents. Aggrieved by the order impugned of the trial Court, the plaintiff-appellant has preferred the present appeal.

(2.) Briefly stated facts to the extent they are relevant and necessary for disposal of this appeal are that on 10-2-1981 'the plaintiff-appellant originally filed a suit for declaration and possession with other consequential reliefs in respect of the property in dispute. The original suit was posted for the plaintiffs evidence on 2-3-94. On this date neither the plaintiff nor his counsel appeared and the trial Court dismissed the suit for default. Against the order dated 2-3-94, the plaintiff-appellant filed an application on 31-3-94 seeking restoration of the original suit which was dismissed on account of nonappearance of plaintiff-appellant under Order 9, Rule 8, CPC. By order dated 2-4-94 notices of restoration application to defendant-respondents were ordered to be issued on payment of process fee and filing of notices. By order dated 18-9-97 the trial Court directed to issue fresh notices to the defendant-respondents and the plaintiff-appellant was directed to pay process fee and file notices. The trial Court also gave last opportunity to the appellant to file the process fee and notices. However, the order dated 18-9-97 was not complied by the plaintiff- appellant which failed to pay process fee and file notices. The matter came up again on 12-12-97. The trial Court observed that despite the last opportunity to the plaintiff- appellant to pay the process fee and file notices, the appellant has failed to file process fee and notices for defendant-respondents. However, in the interest of justice a further last opportunity was granted to the plaintiff-appellant to pay process fee and file notices. The matter again came up on 19-12-97. Despite repeated last opportunities granted to the plaintiff-appellant, he failed to pay the process fee and file the notices for service on defendant-respondents. The trial Court dismissed the restoration application in consequence of the failure of the plaintiff-appellant to pay process fee and failure to file notices for service on defendant-respondents. As noticed from the order impugned neither party appeared when the said application for restoration was called on. The order of the trial Court dated 19-12-97 purported to be under Rule 2 of Order 9, CPC, which is challenged in this appeal.

(3.) I have heard the learned counsel for the parties. Perused the impugned order.