IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 704 of 2011(O&M) Date of Decision: March 22, 2011. Jai Pal Singh. ...... PETITIONER(s) Versus Haryana Tourism Corporation. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Nonish Kumar, Advocate for the petitioner. Mr. D.S.Nalwa, Advocate for the respondent. ***** RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India against order dated 13.09.2010, Annexure P3 passed by Civil Judge(Senior Division), Chandigarh vide which application of petitioner under Order IX Rule 9 of Code of Civil Procedure (for short the ‘CPC’) for recalling order dated 07.01.2004, was dismissed. CR No.704 of 2011 I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court. Facts relevant for the decision of the present revision petition are that, a suit for declaration was filed by petitioner-plaintiff against respondent defendant. Respondent-defendant appeared and filed written statement and the case was fixed for framing of issues when counsel for the plaintiff- petitioner made a statement that he was having no instructions. Hence, the suit was dismissed in default by learned trial Court vide order dated 07.01.2004 by observing as under:- “Today counsel for the plaintiff made a statement that he plead no instruction as plaintiff did not turn up to pursue the matter despite repeated messages. Heard. In view of the statement, the present suit of the plaintiff is dismissed under Order 9 Rule 8 CPC. File be completed and consigned to the record room.” Petitioner-plaintiff filed an application for setting aside abovementioned order dated 07.01.2004 however, the same was dismissed by learned trial Court vide impugned order dated 13.09.2010 by observing as under:- “Heard. The applicant-plaintiff has filed the application under Order 9 Rule 9 read with Section 151 CPC for recalling the order dated 7.1.2004. From the perusal of file, I find that the present case was filed by the plaintiff for declaration and suit was dismissed on 7.1.2004 and the present application for restoration has been filed on 2.8.2007 after lapse of long period. The application is filed after the period of limitation and hence, 2 CR No.704 of 2011 no ground made out to restore the suit. The application stood dismissed. File be consigned to record room.” Order rejecting an application for setting aside dismissal of a suit under Order IX Rule 9 CPC has been made appealable under Order XLIII Rule 1(c) CPC, which reads as under:- “1. Appeal from orders. – An appeal shall lie from the following orders under the provisions of section 104, namely:- (a) xx xx xx (b) xx xx xx (c) 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;” Hence, in view of these facts, equally efficacious remedy of appeal is available to petitioner. He can not invoke the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India without availing the said remedy. There is force in the argument of the learned counsel for the respondent that in view of the fact that impugned order is appealable before the concerned District Judge, the present revision petition is not maintainable before this Court. Hence, in view of aforementioned facts, the present revision petition is, hereby, dismissed being not maintainable. ( RAM CHAND GUPTA ) March 22, 2011. JUDGE 'om' 3 CR No.704 of 2011 4