- (1.) Inspite of sufficient service no one has appeared on behalf of contesting Respondent hence only the arguments of learned Counsel for the Petitioner were heard.
(2.) Respondents Nos. 3 to 9 M/s Aditi Products and its partners borrowed some amount from the Petitioner-bankand defaulted in its payment alongwith interest. Accordingly, Petitioner filed Original suit No. 632 of 1990 against them for recovery of the amount before Civil Judge (Senior Division), Saharanpur. Decree for an amount of about Rs. 4.7 lacs was sought. The suit was transferred for disposal to the court of 1st Additional Civil Judge (Senior Division), Saharanpur. In the suit on 4.5.1993 an order was passed adjourning the suit to 17.5.1993 and directing the Plaintiff to pay all the costs by the next date and produce the evidence on the said date. On 17.5.1993 counsel for the Plaintiffs-Petitioners was not available at Saharanpur as he had gone to Delhi hence adjournment of the suit was sought. The trial court refused to adjourn the case and dismissed the same on 17.5.1993.
(3.) Thereafter an application for setting aside the said order and restoration of the suit was filed by the Plaintiff-Petitioner under Order-9 Rule 9 Code of Civil Procedure which was registered as Misc. Case No. 736 of 1993. Civil Judge (Senior Division)/Judge Small Causes, Saharanpur rejected the said application on 18.3.1997 holding that the order dated 17.5.1993 sought to be set aside was an order under Order 17 Rule 3 Code of Civil Procedure hence that would have to be treated as order on merit and for that reason restoration application under Order-9 Rule-9 Code of Civil Procedure was not maintainable. Copy of the said order is Annexure-8 to the writ petition. Against the said order Misc. Civil Appeal No. 73 of 1997 was filed which was dismissed by I Ind Additional District Judge, Saharanpur on 28.4.1998 hence this writ petition.;