- (1.) ORDER :- The petitioner and non-petitioner No. 2, Raghunath, instituted a suit for permanent injunction against the non-petitioner No. 1. In this suit, before framing issues, the Court, namely Additional Civil Judge No. 1, Jaipur City, considered it necessary to examine the plaintiffs under O.10, C.P.C. In pursuance of this order dated 20th March, 1985, the plaintiff Raghunath was examined under O.10 on 14-10-1985, and thereafter Prahalad Kumar Gupta, Secretary of the petitioner-Society was directed to be present on 2-9-85. He did not appear on this date and next dates given were 25-9-85, 28-9-85 and 15-10-85. He failed to appear on all these dates and on 15-10-85, the defendant non-petitioner No. 1, moved an application that the suit of the plaintiff be dismissed under O.9, R.12, C.P.C. This application was fixed for arguments and orders on 16-10-85 and on this date the learned Civil Judge, considered the circumstance that the Secretary of the petitioner had failed to appear without any sufficient cause and as such the suit of the petitioner was dismissed under O.9, R.12, C.P.C. Plaintiff Raghunath's suit was to proceed.
(2.) On 8-11-1985, the petitioner moved an application for setting aside the order dated 16-10-85. He gave reason for his absence on the previous dates, which was that he was unwell and was an indoor-patient for some time and as such his suit, which has been dismissed, should be restored and he should be allowed to proceed with it. This application came to be decided by the learned lower Court by his order dated 17-12-85 and by this order, he held that the petitioner was not able to give a sufficient cause for his absence on 16-10-85 and as such his suit could not be restored. This order has been challenged in the present revision.
(3.) A preliminary objection has been raised about the maintainability of the revision petition. According to the learned counsel for non-petitioner No. 1, the suit of the petitioner was dismissed either under O.9, R.12, C.P.C. or it can be said to have been dismissed under O.10, Rule 4(2), CPC and in both cases an application for restoration has to he moved under O.9, R.9, CPC and any order of the Court refusing to accept such an application is appealable under O.43, R.1(c). When an appeal is maintainable, a revision does not lie. There is no dispute that an appeal against the rejection of an application for an order to set aside the dismissal of a suit is maintainable and in order to save himself from this situation, the learned counsel for the petitioner has contended that his application for restoration was not under O.9, but under S.151, C.N.C. and any order passed on an application under S.151, C.P.C. is not appealable and the only remedy to the aggrieved person is to approach this Court by way of a revision.;