PRAKASH CHANDRA Vs. HARI PRASAD

JUDGEMENT

(1.) THIS revision petition has been filed by the petitioner - plaintiff against the judgment dtd. 27. 1. 2004 passed by the learned Additional Dist. Judge, Parbatsar in Civil Appeal No. 1/2003 whereby he dismissed the appeal filed by the petitioner - plaintiff and affirmed the order dtd. 10. 1. 2003 passed by the learned Civil Judge (J. D.), Makrana in Civil Case No. 101/2000 whereby the learned Civil Judge dismissed the application under Order 9 Rule 4 C. P. C. filed by the petitioner - plaintiff for restoration of the suit.

(2.) IT arises in the following circumstances: i) That the petitioner - plaintiff filed a suit against the respondents - defendants for permanent injunction and in that suit, the date was fixed as 29. 5. 2002 for filing written statement on behalf of the defendants - respondents, but on that date, i. e. on 29. 5. 2002, since nobody appeared on behalf of the petitioner - plaintiff including his counsel, the suit was dismissed in default for non-prosecution. ii) That thereafter on 4. 7. 2002, the petitioner - plaintiff filed an application under Order 9 Rule 4 C. P. C. for restoration of the suit mentioning the reasons for default. iii) That no reply was filed by the respondents - defendants to the application filed by the petitioner - plaintiff. However, after hearing both the parties, the learned Civil Judge (J. D.) through order dtd. 10. 1. 2003 after placing reliance of Article 122 of the Indian Limitation Act, 1963 dismissed the application filed by the petitioner plaintiff inter alia holding that since after 29. 5. 2002 there were summer vacations, therefore, on opening day i. e. on 1. 7. 2002, the application for restoration of the suit should have been filed and since it was filed on 4. 7. 2002, therefore, according to him it was time barred by three days. iv) That aggrieved from the order dtd. 10. 1. 2003, the petitioner - plaintiff filed an appeal before the learned Additional Dist. Judge, Parbatsar and the learned Additional Dist. Judge, Parbatsar also dismissed the appeal filed by the petitioner - plaintiff through judgment dtd. 27. 1. 2004 and affirmed the order dtd. 10. 1. 2003 passed by the learned Civil Judge. Hence, this revision petition.

(3.) FOR the reasons mentioned above, the present revision petition deserves to be allowed and judgment dtd. 27. 1. 2004 passed by the learned Additional Dist. Judge and order dtd. 10. 1. 2003 passed by the learned Civil Judge suffer from basic infirmity and illegality and deserve to be quashed and set aside. Accordingly, the present revision petition is allowed and the judgment dtd. 27. 1. 2004 passed by the Additional Dist. Judge, Parbatsar in Civil Appeal No. 1/2003 and order dtd. 10. 1. 2003 passed by the learned Civil Judge (J. D.), Makrana are quashed and set aside and the application filed by the plaintiff - petitioner under Order 9 Rule 4 C. P. C. is allowed and the suit filed by the petitioner - plaintiff is restored to its original number and the parties are directed to appear before the learned Civil Judge (J. D.), Makrana on 4. 10. 2004 and on that date, the defendants - respondents shall file written statement. .