1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5047 OF 2009. Ismail s/o Kabirsab Shaikh Age: 72 Yrs., occu. Agril. r/o Chata Tq. Latur, District Latur. - PETITIONER VERSUS 1) Mohammad Ibrahim Shaikh Age: 43 Yrs., occu. Agril. 2) Kasim s/o Hussain (Died) though L.Rs. (I) Shabirabi Kasim Shaikh Age: 60 Yrs.,occu.Household, (II) Abidabi Isak Shaikh Age: 40 Yrs., occu. Household, (III)Shaiklal Kasim Shaikh Age: 35 Yrs., occu. Agril. (IV) Rashedbi Gausmiya Shaikh Age: 30 Yrs., occu. Household. 2 All r/o r/o Chata Tq. Latur, District Latur. - RESPONDENTS ***** Mr.M.P.Gude,Advocate for Petitioner; Mr.C.R.Deshpande, Advocate for Resp.No.1. ----- CORAM : R.K.DESHPANDE, J. DATE : 10th June, 2010. ORAL JUDGMENT : 1) Heard. This Writ Petition challenges the order dated 12.11.2003 passed by the learned civil Judge, Junior Division, Latur in Regular civil Suit No.586/1999. By this order, the suit filed by the plaintiff has been dismissed in default. The petitioner further challenges the order dated 27.1.2009 passed by the learned Civil Judge, Junior Division, Latur, in Misc.Application No.262/2003 filed in RCS No. 586/1999. By this order, dated 27.1.2009, the learned Judge of the Trial Court has rejected the earlier application filed for restoration of the 3 suit. 2) Notice in this matter was issued on 7.8.2009. In response to the same, Shri Deshpande Advocate appears for Respondent no.1 and waives service of notice. Original Defendant no.2 is joined as respondent no.2 through his legal heirs. Though they are served, none appears for them. 3) Shri Gude, the learned Counsel appearing for the petitioner submits that, the Respondent no.2, who is the original defendant no.2, is the purchaser of the property in question from the respondent no.1/defendant no.1. The suit is filed for specific performance of contract in favour of the plaintiff, whereby it has been agreed to transfer the property in the name of the plaintiff. Hence, according to him, the presence of Respondent No.2 through his legal heirs, in the instant proceeding is not necessary and the matter can be disposed of in their 4 absence. 4) Learned Counsel for the petitioner and Respondent No.1 agreed that the matter can be finally disposed of at this stage. Hence, Rule made returnable forthwith by consent of the parties. Shri Deshpande learned Counsel waives service of notice for respondent no.1. 5) Shri Gude, the learned Counsel for the petitioner has moved an application for amendment to the prayer clause for carrying out corrections in prayer clause "D" of the petitioner and he wants to add the words `below Exhibit-27'. Shri Deshpande, the learned Counsel does not object to this amendment. Hence, this amendment is allowed. The amendment be carried out forthwith. CA in that regard is disposed of. 6) Regular Civil Suit No.586/1999 filed by the plaintiff for specific performance of contract was dismissed in default on 12.11.2003. On 18.11.2003 the application came to be filed 5 for restoration of the suit, which was dismissed in default. The said application, being Misc. Application No.262/2003 for restoration, came up for orders before the Trial Court on 27.1.2009, and the same was dismissed in default. Hence, an application for restoration of the Misc. Application No.262/2003 (Exhibit-27) was filed. The said application (Exhibit27) was dismissed by the learned Civil Judge, Junior Division, Latur by order dated 27.1.2009. Hence, this writ petition has been preferred. 7) Shri Deshpande, the learned Counsel appearing for Respondent No.1, has raised a preliminary objection that an appeal against the order lies in terms of provisions of Order 43 Rule 1(C) of Civil Procedure code against the order passed on the application , rejecting the application under Order 9 Rule 9 for setting aside the dismissal of the suit. He relies upon the decision of the Full Bench of Patna High Court, reported in AIR 1959 Patna 121 (Doma 6 Choudhari and Ors. Vs. Ram Naresh Lal and Ors.). He submits that the application (Exhibit-27) was in the nature of an application contemplated by Order 9 Rule 9 of CPC and hence, it does not make any difference whether this is second or third application and appeal would lie against the order passed on such application. He further relies upon a decision of the Apex Court, reported in AIR 2005 SC 226 (Shyam Sunder Sarma Vs. Pannalal Jaiswal and others), for the proposition that, dismissal of the application for condonation of delay amounts dismissal of the suit itself and hence it becomes a decree appealable. He, therefore, draws that analogy in respect of the orders challenge and urges that the suit has ultimately been dismissed, therefore, an appeal would be an appropriate remedy. 8) After going through the judgment of the Full Bench of Patna High Court, it is apparent that the facts in that case were different. In 7 that case the suit was dismissed in default and the application under Order 9 Rule 9 of Civil Procedure Code for setting aside the dismissal of the suit was filed. The said application was dismissed; thereafter an application was moved under Section 151 of CPC for setting aside the dismissal of the application filed for restoration and that application was allowed and the matter was restored to file. It was held that, the appeal is maintainable against such order of dismissal. In the present case, the application for restoration of the suit was dismissed on 27.1.2009; thereafter an application for restoration of Misc. Application No. 262/2003 was filed and that application was also dismissed on 27.1.2009 itself. In my view, this would not be a dismissal of an application contemplated under Order 9 Rule 9 of Civil Procedure Code and hence, no appeal would lie against such order. The decision of the Full Bench of the Patna High Court, treating the application for restoration of the application for setting aside the 8 dismissal of the suit in default as an application under Order 9 Rule 9 of CPC, however, this is not what is contemplated by the provisions of Order 43 Rule 1 of CPC and hence, the said Judgment is of no help. 9) The another judgment, relied upon by Shri Deshpande is in respect of dismissal of the application for condonation of delay, which results in dismissal of the suit. In the instant case, the suit is already dismissed in default and the application under Order 9 Rule 9 of PC was filed, that was dismissed and hence application for restoration under Order 9 Rule 9 was filed, however, the same is dismissed, against which the present writ petition has been filed. Hence, the said judgment is also of no avail. 10) Shri Gude, the learned Counsel for the petitioner, has urged that the Trial Court ought to have allowed the application for restoration 9 of Misc. Application No.262/2003, by allowing Exhibit-27. It is apparent that the order was passed on 27.1.2009. An application was moved on the same day; the reasons are stated in the application and sufficient cause was made out for allowing the application for setting aside the order dated 27.1.2009, whereby Misc. Application No.262/2003 was dismissed. 11) Shri Deshpande, the learned Counsel further submits that the conduct of the plaintiff ought to have been seen when the matter was dismissed in default on 2-3 occasions. 12) After going through the contents of the application (Exhibit-27), I am satisfied that sufficient cause was made out for setting aside the order dated 27.1.2009 dismissing the Misc. Application No.262/2003. 13) In the result, the instant writ petition is allowed. The order dated 27.1.2009 passed 10 below Exhibit-27, is hereby quashed and set aside. The Trial Court is directed to consider the question of restoration of Misc. Application No.262/2003, without being influenced by any of the observations made by this Court in this Order. Rule is accordingly made absolute in the aforesaid terms with no order as to costs. sd/- (R.K.DESHPANDE) JUDGE bdv/p/wp5047.09 Authenticated copy (BD VADNERE,PS )