MADHURI PRASAD Vs. NAKUL LAL

JUDGEMENT

(1.) Heard the learned counsel for the parties. The present revision application is filed under Section 115(1) of the Code of Civil Procedure against the order dated 22.12.2009 passed by learned Munsif, Hazaribagh in Misc. Case No. 09/2005, whereby, the learned Munsif has set aside the dismissal order of the suit dated 8.9.2005 and restored Title Suit No. 39/ 2004.

(2.) Learned counsel for the petitioners submitted that title suit No. 39/2004 filed by the plaintiff was order to be dismissed under Rule 5 of Order (IX), CPC and therefore the only option which was available with the Court below was to ask the plaintiff to file a fresh suit under sub-section 2 of Order IX, Rule 5 of the CPC. But instead of passing such order, the Court below while passing the order dated 22.12.2009 failed to appreciate this legal provision contained in sub-rule (2) of Rule 5 of Order (IX) and passed an order for restoration of the suit, which is not legally permissible. It Is further submitted that the restoration application along with limitation petition was preferred by the Opp. Party and the learned Court below has also passed the order with regard to condonation of delay without hearing the present petitioner. It is also submitted that the present petitioners filed their appearance on 15.12.2006 and thereafter they filed rejoinder dated 20.2.2006. It is submitted that the Court below has failed to appreciate the provision of law as contained in sub-rule (2) of Rule 5 of Order (IX) and only on this ground, the present revision application may be allowed and thereby impugned order dated 22.12.2009 may be set aside. In support of his contention, learned counsel for the petitioners has refereed to and relied upon the judgment reported in ,: 2000 AIR(Bom) 307 Vishwanath Satwaji Gaikwad v. Laxman Abaji Kawale and Ors., and by referring para 12 of the judgment, he submitted that the said judgment is applicable to the facts and circumstances of the present revision application.

(3.) As against this, learned counsel for (sic) Opp. party submitted that it is not open for the petitioner to raise this plea before this Court as they have already participated in the restoration proceeding and they also adduced their evidence before the learned Court below. It is also submitted that after pronouncement of the said order by the Court, the plaintiff has acted upon it and the defendants have also appeared and participated in the suit proceedings. Therefore, now it is not permissible for the petitioners to raise such plea and challenge the order impugned dated 22.12.2009 by way of filing this revision application at this belated stage.