- (1.) The present writ petition has been filed by the petitioner-plaintiff, challenging the order dated 7/9/2011 passed by the Additional District Judge No.4, Kota (hereinafter referred to as 'the Appellate Court') in CMA No.44 of 2011, whereby the Appellate Court has dismissed the appeal filed by the petitioner and affirmed the order dated 10/08/2011 passed by the Civil Judge (Junior Division), North, Kota (hereinafter referred to as 'the Trial Court') in Civil Misc. Case No.108 of 2011, whereby the Trial Court had dismissed the application of the petitioner filed under Order IX, Rule 9 of CPC.
(2.) In the instant case, it appears that the petitioner-plaintiff had filed the suit before the Trial Court seeking permanent injunction with regard to the shop in question, which was resisted by the respondents-defendants. It appears that the Trial Court had earlier allowed the temporary injunction application of the petitioner vide the order dated 22/05/2007, against which the respondents had preferred an appeal, which was dismissed by the Appellate Court vide the order dated 1/4/2008, and the writ petition preferred by the respondents before the High Court was also dismissed by the order dated 03/02/2011. However, it appears that when the suit was fixed for hearing, nobody remained present on behalf of the petitioner-plaintiff, and therefore the Trial Court dismissed the suit under Order IX, Rule 8 of CPC vide the order dated 13/07/2010. The petitioner, having come to know about the said dismissal, filed an application under Order IX, Rule 9 of CPC for setting aside the said order, however, the said application was dismissed by the Trial Court vide the order dated 10/08/2011. Being aggrieved by the said order, the petitioner had preferred the appeal before the Appellate Court, which has been dismissed vide the impugned order dated 7/9/2011.
(3.) It has been submitted by the learned counsel Mr. M.I. Beg for the petitioner that due to non-communication of the order passed by the Trial Court dismissing the suit, the petitioner could not file the application under Order IX, Rule 9 of CPC within the prescribed time limit. According to him, the petitioner should not be made to suffer on account of the negligence on the part of his lawyer.;