GYARSI LAL & OTHERS Vs. PRABHU & ORS.

JUDGEMENT

(1.) The plaintiff-appellants have filed this Civil Misc.Appeal under Sec. 104 read with Order 43, Rule 1 (c) C.P.C. against the order dated 17.9.2012 passed by the Additional District Judge No.2, Jaipur District, Jaipur in Civil Misc. Application No.35/2002 whereby the learned Court below dismissed the application under Order 9, Rule 9 C.P.C. filed by the appellants as not maintainable which was filed against the order and decree dated 10.7.2002 passed in Civil Suit No.11/1999 whereby the learned trial Court dismissed the suit filed by the appellants on the ground that they failed to produce evidence on their behalf.

(2.) Brief relevant facts for the disposal of this appeal are that Civil Suit No.11/1999 came to be filed by the appellants for specific performance of agreement, declaration and permanent injunction against the respondents in the trial Court. The aforesaid suit was fixed by the trial Court on 10.7.2002 for production of evidence on behalf of the appellants but on the date so fixed no evidence was produced on their behalf. Learned trial Court dismissed the suit by observing that the appellants have failed to produce their evidence despite the fact that several opportunities have been given to them. It is to be noted that decree was also prepared by the trial Court in this regard. Against the order dated 10.7.2002 the aforesaid Civil Misc. Application No.135/2002 under Order 9, Rule 9 C.P.C. was filed by the appellants on the same date i.e. 10.7.2002 with a prayer to restore the aforesaid suit to its original number. Reply to the application was filed by the respondents but came to be dismissed by way of impugned order on the ground that the suit filed by the appellants was dismissed vide order and decree dated 10.7.2002 on the ground that appellants failed to produce their evidence and not in their absence and, therefore, application for restoration of the suit is not maintainable. It was further observed by the Court below that the appropriate remedy against the order and decree dated 10.7.2002 is by way of appeal.

(3.) It is to be noted that prior to the present appeal, appellants filed S.B.Civil Regular First Appeal No. 570/2012 against the order dated 10.7.2002 and 17.9.2012 but the same was dismissed as withdrawn by the High Court vide order dated 9.1.2013 with liberty to file proper proceedings for challenging the aforesaid orders. It is in these circumstances the present appeal has been filed.