ASHOK KUMAR SINGH Vs. PRABHAT KUMAR GHOSE

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India is directed against the order dated 4. 8. 2007 passed by sub. Judge -IX, Ranchi in Misc. Case No. 05 of 2006 whereby the petition filed by the plaintiff-petitioner under Order IX, Rule 8 read with Section 151 C. P. C. for setting aside the order dated 26. 6. 2006 and for restoration of Title Suit No. 304 of 2003 has been dismissed on the ground that the petition is not maintainable.

(2.) THE facts of the case lie in a narrow compass : the plaintiff filed Title Suit No. 304 of 2003 for declaration that defendant No. 1 has no right, title, interest or possession in the suit property and that plaintiff is in rightful possession of the said property. Defendant-respondents on being summoned appeared and filed written statement and contested the suit. Both parties filed their respective issues and the court below settled the issues on 5. 5. 2005 and the suit was posted for evidence. Since plaintiff failed to produce witnesses, the court below closed the evidence of the plaintiff. However, the said order was subsequently recalled and the case was again posted for evidence. Since plaintiff failed to produce witnesses, the court below dismissed the suit by passing order dated 26. 6. 2006 purported to be under order XVII, Rule 3 (a) C. P. C. The plaintiff thereafter filed petition under Order IX, rule 8 read with Section 151 C. P. C. for restoration of suit. The said application was registered as Misc. Case No. 05 of 2006. However, the court below dismissed the said application by order dt. 4. 8. 2007 holding that the said application is not maintainable.

(3.) MR. Ajit Kumar, learned counsel appearing for the petitioner, assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel firstly submitted that the court below has committed serious error of law in holding that the dismissing the suit under Order XVII, Rule 3 (a) C. P. C. is a decree and therefore, appli-cation for restoration of the suit is not maintainable. Learned counsel further submitted that the court below has further committed serious illegality in holding that against the order of dismissal of suit under order XVII, Rule 3 (a) C. P. C. , only an appeal or review before the appropriate Court is maintainable.