spb/- 1 wp9727-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 9727 OF 2010 Kashinath Wamdeo Rane ... Petitioner. V/s. Baban Laxman Kamble ... Respondent. --- Mr. C.N. Chavan for the Petitioner. ----- CORAM : D. G. KARNIK, J. DATE : 25th JANUARY, 2011. P.C. 1 This writ petition is directed against an order passed by the revisional court, confirming the order of the trial court refusing to dismiss the suit of the respondent under Order 39 Rule 11 of the Code of Civil Procedure (for short the Code.) 2 A suit for possession filed by the respondent against the petitioner was decreed ex-parte. The petitioner thereafter, made an application for setting aside the exparte decree under Order 9 Rule 13 of the Code. By an order dated 19th November, 2008 the learned Judge allowed the application (Misc. Notice No.60/2008) and set aside the ex-parte decree. By the very order, the learned Judge also ordered that the respondent shall deliver vacant possession of the suit premises to the petitioner. The revision application filed by the respondent against the said order was dismissed. Consequently, the suit stood restored to file. spb/- 2 wp9727-10.sxw 3 On restoration of the suit, the respondent did not hand over the possession to the petitioner. The petitioner, therefore, filed an application for dismissal of the suit under the provisions of Order 39 Rule 11 of the Code of Civil Procedure. That application was allowed. However, the Division Bench of the Small Causes Court, on revision, set aside that order. Aggrieved petitioner has filed the present petition under Article 227 of the Constitution India. 4 In a proceedings under Order 9 Rule 13 of the Code of Civil Procedure the court has power to to set aside decree. However, the court has no power to order of restoration of the possession under Order 9 Rule 13 of the Code. The order for restoration of the possession can be passed only in application for restoration taken out under section 144 of the Code of Civil Procedure. The court hearing the application under Order 9 Rule 13 had no jurisdiction to order restoration of possession. Prima facie the order of restoration of possession passed by the court in an application under Order 9 Rule 13 appears to be without jurisdiction. Even if it is assumed that the court had the jurisdiction to order restoration of the possession in an application under Order 9 Rule 13 still, in my view, the suit of the petitioner -landlord cannot be dismissed under Order 39 Rule 11 of the Code of Civil Procedure for non-compliance of the order. Order 39 Rule 11 of the Code (Bombay Amendment) provides : where the court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding and where the party contravenes such order, the court may dismiss the suit or proceeding. Order 39 Rule 11 contemplates disobedience of an spb/- 3 wp9727-10.sxw interlocutory order passed in the proceedings and on failure to comply with the interlocutory orders, the proceedings in which interlocutory order was passed can be dismissed. In the present case, the order of restoration of possession was passed not in the suit but in an application under Order 9 Rule 13 of the Code of Civil Procedure. For non-compliance of the order passed in an application under Order 9 Rule 13, that application can be dismissed but not the suit which is an independent proceeding. Consequently, it cannot be held that the refusal by the division bench of the Small Causes Court to dismiss the suit on account of non-compliance of the order passed under Order 9 Rule 13 of the Code of Civil Procedure is in any way erroneous. 5 There is no merit in the writ petition. It is rejected summarily. Needless to say that this order would not prevent the petitioner to file an application for restitution under section 144 of the Code of Civil Procedure. [D.G. KARNIK, J.]