SHOWKAT AHMAD BHAT Vs. CENTRE OF ELECTRONICS
HIGH COURT OF JAMMU AND KASHMIR
Showkat Ahmad Bhat
Centre Of Electronics
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(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. ";
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