RAJASTHAN HIGH COURT

                   Narendra Pratap

                                           Vs.

                   Gopi Lal

                   S.B. Civil Writ Petition No. 121 of 2004
                                (Prakash Tatta, J.)

                   10.08.2005

                   JUDGMENT

Prakash Tatta, J.

1. Heard learned counsel for the parties.

2. The petitioner is aggrieved against the order dated 14.7.2004 by which the
petitioner's application filed under Order 9 Rule 4 Civil Procedure Code for getting
restoration of the suit was dismissed by the trial Court.

3. Brief facts of the case are that the plaintiff's suit was dismissed in default on
6.8.2003. Before that the defendants were also served and they had also submitted
written statement. Despite this fact, the plaintiff submitted application under Order 9
Rule 4 Civil Procedure Code which is a provision for getting restoration of the suit in
case the suit is dismissed under the provisions of Order 9 Rule 2 or Order 9 Rule 3
Civil Procedure Code i.e. before service of summons on defendant or where both the
parties fail to appear when suit is called for hearing. In fact, the suit of the plaintiff
was dismissed under Order 9 Rule 8 Civil Procedure Code i.e., after service of the
defendant and not in the absence of both the parties but was dismissed as only the
plaintiff did not appear when case was called for hearing and defendant was present in
Court. Therefore, the application for restoration of the suit in facts of the case could
have been under Order 9 Rule 9(1) CPC. When the plaintiff submitted the application
under Order 9 Rule 4 CPC, the defendant raised the objection that the application filed
by the plaintiff under Order 9 Rule 4 Civil Procedure Code is not maintainable. It
appears from the impugned order that the Court below has not applied its mind despite
objection of the defendant in writing and did not decide this question while rejecting
the petitioner/plaintiff's application. However, the trial Court dismissed the petitioner's
application which was filed with title under Order 9 Rule 4 Civil Procedure Code but
as stated above without deciding whether the application of the plaintiff under Order 9
Rule 4 Civil Procedure Code is maintainable and without considering whether the
petitioner's said application can be treated as filed under Order 9 Rule 9 CPC. This
became reason for the petitioner to prefer revision petition to challenge the impugned
order of the trial Court as if the trial Court would have treated the application to be
under Order 9 Rule 9 CPC, the order would have been appealable.

4. Learned counsel for the respondents vehemently submitted that the petitioner's
application under Order 9 Rule 4 Civil Procedure Code was not maintainable and,
therefore, this Court may not interfere in the impugned order as in either case, the
petitioner's application is liable to be dismissed.

5. According to learned counsel for the respondents, even if the application under
Order 9 Rule 4 Civil Procedure Code is treated to be under Order 9 Rule 9 CPC, then
any order passed under Order 9 Rule 9 Civil Procedure Code is appealable under
Order 43 Rule 1(c) Civil Procedure Code and, therefore, this Court has no jurisdiction
to hear this matter as appellate Court in view of the fact that an appeal to challenge the
impugned order lies to the District Court and not to High Court.

6. It is clear from the facts mentioned above that the plaintiff's suit was dismissed after
service of summons upon the defendant and has not been dismissed under Order 9
Rule 2 or 3 CPC. Therefore, the title of the petitioner's application appears to be
wrong and this application can be treated to be filed under Order 9 Rule 9 Civil
Procedure Code as all the ingredients for getting the order of dismissal set aside are
mentioned in the application. The trial Court should have treated this application of
the plaintiff under Order 9 Rule 9(1) Civil Procedure Code and should have
considered the objection raised by the defendants at proper time. Because of this
reason only, the petitioner had no alternative except to prefer revision petition, treating
the order to be under Order 9 Rule 4 Civil Procedure Code for which there is no
provision for appeal provided. In view of the above facts, the application of the
petitioner is treated to be filed under Order 9 Rule 9 Civil Procedure Code and not
under Order 9 Rule 4 Civil Procedure Code and the order of the trial Court is held to
be, since on application under Order 9 Rule 9 Civil Procedure Code is passed under
Order 9 Rule 9 Civil Procedure Code and consequently, appealable order.
7. In view of the above, this revision petition is liable to be dismissed as not
maintainable.

8. Learned counsel for the petitioner prays that in the above circumstances, since this
Court has held that the revision petition is not maintainable as the application of the
plaintiff should have been treated under Order 9 Rule 9 Civil Procedure Code and the
order though purported to have been passed under Order 9 Rule 4 Civil Procedure
Code is in fact under Order 9 Rule 9 CPC, therefore, he may be permitted to withdraw
this revision petition so that he may prefer appeal to challenge the impugned order
dated 14.3.2002 and since this Court also could have permitted the conversion of
revision into appeal but this Court has no jurisdiction to hear appeal as it lies to
District Court, therefore, in the totality of the facts the plaintiff may be permitted to
challenge this impugned order by filing appeal before appropriate forum.

9. Learned counsel for the petitioner apprehends that the petitioner's appeal may be
dismissed on account of delay in filing the appeal.

10. Since this Court held the order to be under Order 9 Rule 9 CPC, therefore, the
petitioner has right to challenge the order by filing appeal. The apprehension of
learned counsel for the petitioner on the basis of delay is not well founded in view of
the fact that the Court can submit the application under Section 14 of the Limitation
Act for taking benefit of this period of prosecuting case in wrong Court and at the
same time, the application for condonation of delay may be submitted for the
remaining period also. The appellate Court can consider the application of the plaintiff
sympathetically in view of the fact that the suit was for partition of the property.

11. In view of the above, the revision petition is dismissed as withdrawn with liberty
to the petitioner to challenge the impugned order in appeal and the order under
challenge is declared to be under Order 9 Rule 9 CPC.
Revision dismissed.