RAJESHWAR SINGH Vs. DASHRATHA RAI

JUDGEMENT

(1.) In this civil revision, petitioner has challenged the legality of the impugned order passed by learned 1st Additional District Judge. Bokaro in Misc. Appeal No. 101 of 1993 whereby the Lower Appellate Court has held that the appeal filed before him is not maintainable and on that ground has dismissed the said appeal. The said appeal was preferred against the order dated 11-10-1993 passed by the Sub Judge, Chas in Misc. Case No. 13 of 1993 whereby the suit was sought to be restored under Order IX Rule 9 of the Code of Civil Procedure.

(2.) Petitioner's case is that he had filed Title Suit No. 134 of 1987 praying a decree for declaration that the sale deed No. 6773 dated 25-7-1986 was null and void and also for a decree for permanent injunction restraining the defendant from interfering with his right, title and possession. The said suit was dismissed for default on 23-4-1993. The petitioner filed petition for restoration of the Title Suit No. 134 of 1987 being Misc. Case No. 13 of 1993 under the purported provision of Order IX Rule 9 of the Code of Civil Procedure. The said petition was also dismissed on 11-10-1993. The petitioner filed Misc. Appeal No. 101 of 1993 against that order of learned Sub Judge, Chas. The respondent objected and contended that the appeal against the said order is not maintainable and the appellant has got remedy under Order IX Rule 9 of the Code of Civil Procedure. Learned lower appellate Court held that the plaintiff-appellant-petitioner had remedy for getting restoration on the principle of Order IX Rule 9 of the Code of Civil Procedure in view of provision of Section 141 of the Code of Civil Procedure and that the appellant could have filed miscellaneous case for restoration of the said Misc. Case No. 13 of 1993 instead of filing an appeal against the said order of dismissal. Learned Lower Appellate Court held that the said appeal filed under Order XLIII Rule 1 (c) of the Code of Civil Procedure is not maintainable and dismissed the appeal.

(3.) Learned counsel for the petitioner submitted that Order XL III Rule 1 (c) of the Code of Civil Procedure clearly provides appeal against an order under Rule 9 of Order IX, rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. The said provision does not distinguish between an order passed on merit or on default. The appeal, therefore, is maintainable under Order XL III Rule 1(c) even if the same is dismissed for default. Learned counsel submitted that since there is a clear provision of appeal against such order, learned Court below has not properly exercised its jurisdiction and has erroneously held that the appeal is not maintainable. The said order is, thus, contrary to law and is liable to be set aside. Learned counsel in support of his said submission, referred to and relied upon a decision of the Patna High Court (as then was) in Doma Choudhary and others v. Ram Naresh Lal and others, reported in AIR 1959 Patna 121 Full Bench.