CP IN THE HON'BLE HIGH COURT OF CHHATnSGARH AT BILASPUR W,P.(227)NO. '"] B^ QF 2010 WRIT PETITEON UNbER ARTICLE 227 OF THE CONSTCTUTION OF INDIA Petitioner H ^^^^—^ Heeralal S/o Late Nand Lal Yadav (sirice deceased) through Legal Representatives; (a) Thaleshwar S/o Heeralal Yadav, aged 24 years, R/o Village Lafinkhurd ^ (b) ^•^•"...•- ^fer?/ ..i@^ ^y ^€^ :;^ ^ g.. (c) (d) (e) (f) Smt. bevki Bai W/o Khilawan Yadav (b/o Late Heeralal Yadav), aged 28 years, R/o Village Machewa, P.0. Machewa, Tahsil and District Mahasamund. Smt. Pushpa Bai, aged about 22 years, W/o Birsingh Yadav, D/o Heeralal Yadav, R/o Village Khapripara, P.0. Basin, Sub-Tahsil Fingeshwar, Distt. Raipur ^ . . ^'^^'•^ -A^iftw Ku. Lalita, aged .8'20 years, b/o Late Heeralal Yadav, R/o Village Lafinkhurd, ^Wafc—^teta y Anusuiya B^, Wd/o-HeeTala} •yQdavr^.iJe^.s^^r^: " ') Minor Ky..Khumin Bai, ^' ^"years, b/o Late Heeralal Yadav, R/o Village Lafinkhurd, Wali Mata Anusuiya Bai, Wd/o Heeralal Yadav. -;t-^ .Z-'F^Ar^c- <m^<^_^J^ (^-<f,"> r:^ (f) Minor ^i^ Topin Bai, aged about ^ years, b/o Late Heeralal Yadav, Mata ^.^ *-^^ ^ ^" Respondents -^r.^i-^o.z. 1. 2. Anusuiya Bai Wd/o Heeralal Yadav, ^R/o Village Lafinkhurd, To^ .<AaAo->r-^. (9) w\Q^-^>-t- Anusuiya Bai, Smt. Anusuiya Bai, aged about 46 years,Wd/o Late Heeralal Yqdav, R/o Village Lafinkhurd,""^^, r^^aV>^r'^\^*^^^-^^^j^ ^c. ^vJ^ •^-^ G <> ^e,. . ^^ (rJ ^ ^A-A.irir Versus ^^ 2J^^-^\^ Smt. Isbati, D/o Nandlal Yadav, aged 60 years, R/o Village Lafinkhurd, P.H.No. 145 and R/o Village Kanekera, P.0. Chhura, Tahsil Chhura. bistt. Raipur. _ ^^-t-<4- ^»^*>* State of Chhattisgarh. through the Cotlector, Mahasamund, Distt. V Mahasamund -—.^^t^o-x- h t \' HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition C227) No. 788 of2010 PETITIONER : Heeralal (since deceased) through LRs VERSUS RESPONDENTS : Smt. Isbati & Another WRTT PETITION UNDER ARTICLE 227 OF THE CON8TTTUTION OF INDIA fSB: Hon'Me Mr. N.K. Asarwal, J.) Present : Shri Sanjay S Agrawal, Advocate for the petitioners. Shri VK Pandey with Ms. Neha Verma, Advocates for respondentNo. 1. Shri GD Waswani, Govt. Advocate with Shri Vinod Tekam, Panel Lawyer for the State/respondent No. 2. ORALORDER (Passedon 09.03.2011) 1. The instant petition calls in question the order dated 08.01.2010 passed by fhe Ist Civil Judge, Class I, Mahasamund, in Civil MJC Case No. 7/09, whereby the petitioner's application jBled under Order 9 Rule 9 ofCPC was dismissed as not maintainable. 2. Brief facts of the case are: petitioner filed an application under Order 9 Rule 13 of CPC for setting aside judgment and decree passed in Civil Suit No. 44-A/2000. On 21.08.2009, the said application was dismissed for want of prosecution. On the same day, the petitioner moved an application under Order 9 Rule 9 read with Section 151 ofCPC for its restoration. 3. The trial court, vide impugned order dismissed the above application holding : provisions of Order 9 Rule 9 of CPC are inapplicable in misc. prQceedings like the present one. It was ^^%. "%i ^ •^^ 15 .s^ 2 0:^ 4. further held, petitioner also failed to show any sufficient cause for restoration. I have heard the counsel appearing for the parties and pemsed the order impugned. 5. In the instant case, application under Order 9 Ru!e 13 ofCPC, filed by the petitioners was dismissed in default and application under Order 9 Rule 9 of CPC was filed for its restoration. An application under Order 9 Rule 9 of CPC is a proceeding in a court of civil jurisdiction within Section 141. Application under Order 9 Rule 9 ofCPC is not an interiocutory application by its nature. It is an independent application and is registered as an independent Misc. Judicial case. 6. As per Section 141 of CPC, the procedure provided in Code of Civil Procedure with regard to the suit is made applicable in all the proceedings in any court ofciviljurisdiction. 7. Similar question was arose before the Full Bench of MP High Court in case ofNathu Prasad v. Singhai Kapurchaiid , in which application under Order 9 Rule 9 was dismissed in default and application under Order 9 Rule 9 of CPC was filed for its restoration. It was held : An application under Order 9 Rule 9 of CPC is a proceeding in a court ofciviljurisdiction within Seetion 141. The object and purpose ofSection 141 is that for economy ofwords it was unnecessary to repeat the whole ofthe procedure in providing for procedure for an application or any other ! AIR 1976 MP 136 Full Bench '-, J proceeding original or ancillary. An application under Order 9 Rule 9 ofCPC is not an interlocutory application. By its nature, £; an application under Order 9 Rule 9 is an independent application and is registered as an independent Misc. Judicial case. Hence an application lies to restore application which was dismissed for default which application had been made for setting aside the dismissal ofa suit for default. 8. In view ofabove, the trial court had exceeded its jurisdiction in dismissing the application on the ground that application is not tenable. Further, the application was filed on the same day, therefore, it is not correct to say petitioner failed to assign sufficient cause for his non appearance. 9. For the reasons mentioned hereinabove, the petition is allowed. Order impugned dated 08.01.2010, being not sustainable in law, deserves to be and is hereby quashed. Application filed by the petitioner under Order 9 Rule 9 of CPC is allowed. The trial court is directed to restore MJC Case No. 7/09 i.e. application under Order 9 Rule 13 ofCPC to its original number and decide the same in accordance with law on its own merit. 10. Parties are directed to appear before the trial court on 11.04.201 1. Sd/- N. K. Agarwal Judge Sahu