1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7735 OF 2008 Sundarbai W/o.Mangilal Maheshwari, through her Power of Attorney Holder Shri.Omprakash S/o.Mangilal Maheshwari PETITIONER VERSUS Harichand S/o.Rupchand Badera, Parbhani. RESPONDENT Mrs.Manjusha Deshpande, h/f. Mr.Ajay Deshpande, advocate for petitioner. Mr.H.V.Patil, advocate for respondent (CORAM : A.V.POTDAR, J.) DATE : 24/06/2009 PER COURT : 1. By the present writ petition, there is challenge to the order passed in Misc.Civil Application No.71/2003, dated 02/01/2006 by the Civil Judge, S.D. Parbhani by which the application for restoration under Order 9 Rule 9 of CPC was rejected. 2. Heard advocate for petitioner followed by the arguments of advocate for respondent. At the beginning only, advocate for respondent opposed the maintainability of the present writ petition. According to him, after the suit was dismissed, an application was 2 filed for restoration under Order 9 Rule 9 of CPC which was rejected by the Trial Court i.e. Civil Judge, S.D. Parbhani vide his order and judgment dated 02/01/2006. If this order of dismissal or rejection of the restoration application is to be challenged, then this order to be challenged under Order 43 Rule 1(C) of The CPC. At this stage, he drawn my attention towards the fact that initially this order of rejection of application was challenged by way of preferring Misc. Civil Appeal before the District Court, and the District Court was pleased to allow the said Misc. Civil Appeal. This order was challenged by the respondent by preferring Writ Petition No. 298/2008, which stands disposed of vide judgment dated 20/10/2008. It was pointed out during the course of arguments in that writ petition that if the Special Civil Suit having valuation more than Rs.2,00,000/-, then the appeal against the order passed in that proceeding to be preferred by way of appealable order before the Hon’ble High Court and not before the District Judge. In that premise, in that writ petition the order passed by the District Court was set aside with the direction to take an appropriate steps according to Law. By pointing out this order as well as the provisions as laid down under Order 43 Rule 1(C) of CPC, which speaks for the appeal against the order passed in an application moved under Order 9 Rule 9 of CPC, and if the remedy of appeal is provided, then the writ petition is not maintainable. In support of his contention, he placed his reliance on the ruling (2003) 3 Supreme Court Cases 524 of Full Bench in the matter of Sadhana Lodh versus National Insurance Co.Ltd., and another about the observations in para no. 3 4,6 and 8 which speaks for “under Article 226, 227 of The Constitution of India, generally where a statute provides an appeal on limited ground, the said grounds of challenge can not be enlarged by filing writ petition under Article 226, 227 of The Constitution of India. It is further observed that maintainability of the writ petition under Article 226, 227 of The Constitution of India when the alternate remedy is available to challenge the award/decree by way of appeal and if without availing that alternate remedy available to the aggrieved party concern, preferred to challenge the order by way of writ petition, then the writ petition is not maintainable. He has also brought to the notice of this Court about the ratio laid down in the ruling reported in 2004 MCR 915, in the matter of Vaidik Seva Ashram versus Shivanand Ramji Dasarwar since Deceased Through LR’s. about the observations in para no.11, which speaks for order of dismissal of suit for which restoration application was filed under Order 9 Rule 4 of CPC. The restoration was allowed not in appeal and revision against the order of the Appellate Court under Rule 2,3 and 4 of Order 9 not appealable under Order 43 Rule 4(1) of CPC, when the dismissal of the suit under Rule 3 and dismissal of the application for restoration under Rule 4 of Order 9 stands on different footings, hence the appeal being not maintainable the Appellate Court has no jurisdiction to consider the appeal on merit. On clear perusal of the observations in para no.8 of the judgment cited, wherein it is observed that the order of rejection of application for restoration of the suit passed under Rule 4 of Order 9 of CPC is not appealable as no appeal is provided against the said order in the 4 provisions contained in Order 43 Rule 1(a) to (2) of CPC. The only remedy available in case of dismissal or rejection of an application for restoration of the suit under Order 9 Rule 4 of CPC was to prefer Civil Application before the High Court. Thus it is made clear in this ruling that if the remedy of appeal is not available, then challenge of that order if by way of Civil Revision Application and not by the writ petition. 3. In reply to these submissions, according to learned advocate for petitioner, the order of the Trial Court is not clear whether the suit was dismissed whether under Rule 3 or Rule 8 of Order 9 of CPC. In the premise, whether the remedy of appeal or revision is available or not, can be determined from the order passed by the Trial Court. This Court is afraid to accept these submissions on the very simple ground that the application moved by the petitioner applicant before the Trial Court was one under Rule 9 of Order 9 of CPC. This application was rejected by the Trial Court vide its order dated 02/01/2006 which is impugned order under challenge in this writ petition. Thus the fact is clear that the rejection of application for restoration under Order 9 Rule 9 of CPC gave rise to file the present proceeding and when the application of the petitioner themselves was one under Rule 9 of Order 9 CPC, now they can not say that they have not filed an application for restoration under that provision of Law. If in Law, specific remedy of appeal is provided under Order 43 Rule 1(a) of The CPC, and without availing that remedy, if the writ petition is filed, then the writ petition is not maintainable. 5 4. As the writ petition is not maintainable, it is rejected with no order as to costs. (A.V.POTDAR, J.) khs/wp7735-08