- (1.) THIS revision is directed against the order dated 23 -7 -2003 passed by Munsiff/Sub -Registrar, Srinagar dismissing the application for condonation of delay in filing restoration application.
(2.) THE brief facts of the case are that the petitioner herein had filed a suit for declaration and injunction in the trial court. Along side the suit, he had also filed an application for grant of interim relief. The application for interim relief was disposed of by the trial court vide order dated 24 -3 -2001 after hearing the parties. Aggrieved by the said order, the petitioner herein filed civil miscellaneous appeal in the court of Pr. District Judge, Srinagar, which was dismissed vide order dated 7 -11 -2002. When file was received back by the trial court from the first appellate court on 20 -11 -2002, it was required to summon the parties before proceeding further in the matter as the first appellate court had not fixed any date for appearance of parties before the trial court. The trial court instead of putting the parties to notice recorded the following order: "Received today 20th No. 2002. Be consigned to records after its due completion, as nobody appears to prosecute the same".
(3.) PETITIONER there -after moved an application for restoration of the suit on 0 -4 -2003. Since the application for restoration was time barrel, he also filed application for condonation of delay which was dismissed vide the impugned order, resulting in the dismissal of restoration application as being time barred. Heard learned counsel for the parties and perused the record. Learned counsel for the respondents submitted that the revision petition is not maintainable for the reason that impugned order is not appealable in terms of order XL,III CPC. Learned counsel for the petitioner vehemently argued that the impugned order is not appealable but is revisable. It is relevant to reproduce Order 9 Rule 3 and 4 of the Code of Civil Procedure (for short herein after CPC); "Where neither party appears, suit to be dismissed. -Where neither party appears when the suit is called on for hearing, the Court, may make an order that the suit be dismissed. Plaintiff may bring fresh suit of Court may restore suit to file. - - Where a suit is dismissed under rule 2 or rule 3, the plaintiff may, subject to the law of limitation, bring a fresh suit: or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule or his non - appearance as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. ";