Mohd. Yamin, J. - (1.) By impugned order dated 29.1.1997 learned Additional Civil Judge (JD) No. 1. Jodhpur dismissed the application under Order 9 Rule 4 Civil Procedure Code. observing that the provisions of Order 32 Rule 15 Civil Procedure Code. do not apply after the suit was dismissed as well as on merits.
(2.) I have heard the learned counsel for both the parties at length.
(3.) Plaintiff Shankarlal had filed a civil suit against the UIT, Jodhpur. Inderchand and State of Rajasthan through Collector, Jodhpur for possession and declaration as well as permanent injunction alleging that he was in possession of a piece of land measuring 45'x 125' situated in Jawahar Colony for last 65 years from the time of his father. The UIT carved out a plan in the year 1969 and prepared site plan in which it was shown that 5 portion of the land of plot No. 6 was in possession of the plaintiff. It was further averred that on 15.1.74 defendant Inderchand his father and brother took possession of a part of plot No. 5. According to the site plan of UIT the size of plot No. 5 was 24'x45'. The remaining portion of the plot No. 5 measuring 14'x10' was still in possession of the plaintiff. The matter was also reported to the police. A suit under Section 6 of the Specific Relief Act was filed by the plaintiff but the UIT took objection of notice in the suit and, therefore the plaintiff withdrew that suit after obtaining permission from the Court to file a regular suit. Later on the State Government issued instructions to the UIT that the cases in which persons had old possession may be regularised. Then on 2.12.72 defendant UIT issued a notice to the plaintiff to deposit Rs. 360/- in order to regularise his possession on the land measuring 125'x45'. The plaintiff deposited this amount. It was further averred that the plot No. 1 was allotted in the name of Madanlal who is the son of plaintiff and allotted plot No. 2 in the name of plaintiff. Plot No. 3 was allotted in the name of Hariram and the plaintiff but so far as plot No. 5 was concerned the same was allotted to defendant No. 2 i.e. Inderchand. Plaintiff sought relief of declaration and possession and injunction as stated earlier. The suit was dismissed on 2.5.94 because the plaintiff or his counsel were not present. An application for restoration of the suit was filed on 21.1.95 stating that the absence was not intentional and the suit be restored. An application under Section 5 of the Limitation Act was also filed along with this application. On 18.7.95, counsel for the plaintiff pleaded no instruction sand plaintiff himself did not want to prosecute the application. Hence this application was dismissed.;