NARENDRA PRATAP Vs. GOPI LAL

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The petitioner is aggrieved against the order dated 14-7-2004 by which the petitioner's application filed under Order 9, Rule 4, CPC for getting restoration of the suit was dismissed by the trial Court.

(3.) Brief facts of the case are that the plaintiffs suit was dismissed In default on 6-8-2003. Before that the defendants were also served and they had also submitted written statement. Despite this fact, the plaintiff submitted application under Order 9, Rule 4, CPC which is a provision for getting restoration of the suit in case the suit is dismissed under the provisions of Order 9, Rule 2 or Order 9, Rule 3, CPC i.e. before service of summon on defendant or where both the parties fail to appear when suit is called for hearing. In fact, the suit of the plaintiff was dismissed under Order 9, Rule 8, CPC i.e., after service of the defendant and not in the absence of both the parties but was dismissed as only the plaintiff did not appear when case was called for hearing and defendant was present in Court. Therefore, the application for restoration of the suit in facts of the case could have been under Order 9, Rule 8(1) CPC. When the plaintiff submitted the application under Order 9, Rule 4, CPC, the defendant raised the objection that the application filed by the plaintiff under Order 9, Rule 4, CPC is not maintainable. It appears from the impugned order that the court below has not applied its mind despite objection of the defendant in writing and did not decide this question while rejecting the petitioner/plaintiffs application. However, the trial Court dismissed the petitioner's application which was filed with title under Order 9, Rule 4 CPC but as stated above without deciding whether the application of the plaintiff under Order 9, Rule 4, CPC is maintainable and without considering whether the petitioner's said application can be treated as filed under Order 9, Rule 9, CPC. This became reason for the petitioner to prefer revision petition to challenge the impugned order of the trial Court as if the trial Court would have treated the application to be under Order 9, Rule 9, CPC, the order would have been appealable.