PRATAPCHAND LAKHAMAJI JAIN Vs. LILABAI KRISHANATH SURVE

JUDGEMENT

(1.) BY the present petition, the petitioner has challenged the order dated 7-11-1997 passed by Civil Judge, Junior Division, at Shriwardhan in Misc. Application No. 2 of 1997. By the impugned order, the lower Court has allowed the application for condonation of delay and for restoration of RCS No. 21 of 1982 filed by the respondent/plaintiff on 4-3-1997 and thereby has set aside the order of dismissal of the said suit which was passed on 14-6-1984.

(2.) THE facts in brief, relevant for the decision herein, are that the petitioner is the tenant of the respondent in respect of the suit premises on monthly rent of Rs. 70/ -. By notice dated 30-6-1982, the respondent sought to terminate the tenancy on the ground of default in payment of rent and called upon the petitioner to deliver vacant possession of the suit premises to the respondent. By reply dated 19-12-1982, the petitioner denied the claim of respondent. The respondent, thereupon, filed RCS No. 21 of 1982 in the Court of Civil Judge, Junior Division at Shriwardhan for eviction of the petitioner from the suit premises and for arrears of rent. After framing the issues in the said civil suit, when the same came up for hearing on 14-6-1984, since neither the plaintiff nor his Advocate appeared though the Advocate for the defendant was present, the suit was dismissed for default. On the understanding that the said suit was dismissed in terms of Order IX, Rule 3 of C. P. C. , the respondent herein filed fresh suit being RCS No. 43 of 1988 on the basis of the same notice dated 30-1-1982, and the same cause of action and for the same relief.

(3.) CONSEQUENT to the defence raised by the petitioner regarding non maintainability of the fresh suit on the same cause of action in terms of Order IX, Rule 9 of C. P. C. , the trial Court, after hearing the parties, held that the fresh suit was maintainable in terms of provisions contained in Order IX, Rule 9 of C. P. C. since the order dated 14-6-1984 was passed in terms of Order IX, Rule 3 of C. P. C. The respondent preferred appeal against the said order being Civil Misc. Appeal No. 57 of 1990 which was heard and rejected by the Additional District Judge at Raigad by his judgment and order dated 26-8-1996. The petitioner being aggrieved by the said order preferred Civil Revision Application No. 137 of 1997 in this Court which was heard and disposed of by this Court on Friday the 18th July, 1998 thereby setting aside the order of both the courts below holding that the order passed by the trial Court on 14-6-1984 in R. C. S. No. 21 of 1984 was in terms of Order IX, Rule 8 C. P. C. and not in terms of Order 9, Rule 3 C. P. C. and therefore fresh Suit No. 43 of 1988 based on same cause of action was not maintainable but the respondent could have sought restoration of Suit No. 21 of 1982. Moreover, the Civil Revision Application No. 137 of 1997 was admitted on 14-2-1997 and after it was admitted, the respondent, herein, filed an application dated 4-3-1997 for restoration of R. C. S. No. 21 of 1982 along with the application for condonation of delay for filing the said application for restoration of suit. The application was registered and numbered 2 of 1997. Though the said application was objected to by the petitioner on the ground that the delay was of 13 and a ? years and no sufficient cause was shown, the trial Court by the impugned order allowed the application and while condoning the delay, ordered the R. C. S. No. 21 of 1982 to have been restored.