MAHESH KHILWANI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE present writ petition has been filed by the petitioner -plaintiff, challenging the order dated 7/9/2011 passed by the Additional District Judge No. 4, Kota (hereinafter referred to as 'the Appellate Court') in CMA No. 43 of 2011, whereby the Appellate Court has dismissed the appeal filed by the petitioner and affirmed the order dated 10/08/2011 passed by the Civil Judge (Junior Division), North, Kota (hereinafter referred to as 'the Trial Court') in Civil Misc. Case No. 107 of 2011, whereby the Trial Court had dismissed the application of the petitioner filed under Order IX, Rule 9 of CPC.

(2.) IN the instant case, it appears that the petitioner -plaintiff had filed the suit before the Trial Court seeking permanent injunction with regard to the shop in question, which was resisted by the respondents -defendants. It appears that the Trial Court had earlier allowed the temporary injunction application of the petitioner vide the order dated 22/05/2007, against which the respondents had preferred an appeal, which was dismissed by the Appellate Court vide the order dated 1/3/2008, and the writ petition preferred by the respondents before the High Court was also dismissed by the order dated 03/02/2011. However, it appears that when the suit was fixed for hearing, nobody remained present on behalf of the petitioner -plaintiff, and therefore the Trial Court dismissed the suit under Order IX, Rule 8 of CPC vide the order dated 12/02/2009. The petitioner, having come to know about the said dismissal, filed an application under Order IX, Rule 9 of CPC for setting aside the said order, however, the said application was dismissed by the Trial Court vide the order dated 10/08/2011. Being aggrieved by the said order, the petitioner had preferred the appeal before the Appellate Court, which has been dismissed vide the impugned order dated 7/9/2011.

(3.) HAVING regard to the submissions made by the learned counsel for the petitioner, and to the impugned orders passed by the Trial Court as well as by the Appellate Court, it appears that there are concurrent findings of facts recorded by both the Courts below for not condoning the delay occurred in filing the application under Order IX, Rule 9 of CPC. The learned counsel for the petitioner has also not been able to state as to whether any action was taken against the errant advocate, who had not informed the petitioner and who had not remained present before the Trial Court, which resulted into dismissal of the suit. The Appellate Court having considered all the legal and factual aspects of the matter has dismissed the appeal, which order does not warrant any interference.