Rule. Rule made returnable forthwith. Heard with the consent of the parties.

2. It is the case of the revision applicants that:

The present respondent has filed a suit for specific performance of contract bearing Spl.C.S. No.74/1997 which came to be dismissed in default on 12.01.2006. However, as the present applicants have filed counter claim in the said suit, the counter claim was proceeded though the suit was dismissed in default. The said counter claim of the present applicants was dismissed by the trial court. The applicants thereafter filed Spl.C.S. no.34/2007 in the trial court. Thereafter, the present respondent has filed an application for setting aside dismissal order alongwith an application for condonation of delay bearing M.A.RJ.I. No. 664/2007, which was dismissed in default by the trial court. It is further the case of the revision applicants that in the suit filed by the present applicants bearing Spl.C.S. No.34/2007, after filing of the written statement, the present respondent tried to amend the written statement and tried to introduce the relief of specific performance of contract, which is the subject matter of earlier suit, which was dismissed in default, and the restoration was also dismissed. Said amendment application was rejected by the trial court, and the said order was also confirmed by this Hon'ble Court. Again after about 5 years from the date of order of dismissal of the suit and after about 2 years from the date of dismissal of earlier application for condonation of delay, the present applicants, for the same relief of restoration of suit which was dismissed in default by the trial court, filed an application purported to be under Order IX Rule 9 of the Code of Civil Procedure for restoration of the suit alongwith an application for condonation of delay. It is the case of the revision applicants that after service of the notice of said application, the present respondent appeared in the proceedings and contended that the present proceedings were not maintainable as earlier application for condonation of delay was dismissed in default by this Hon 'ble Court on 25.02.2009, and that delay, which was caused in filing the present application, is not at all properly explained by the present respondent, and therefore, the applicants prayed for rejection of the application. After hearing the parties, the learned trial Judge was pleased to condone the delay in filing the restoration application by its judgment and order dated 02.05.2013. The learned trial Judge has held that as earlier proceedings were not decided on merits and therefore, the present proceedings are maintainable. However, the learned Judge of the trial court did not advert to the fact as to whether there are sufficient case made out by the respondents for condonation of delay of more than 5 years. Being aggrieved by the said judgment and order passed by learned 4th Joint Civil Judge (Senior Division), Aurangabad, in M.A.R.J.I. No. 1238/2011 dated 02.05.2013, the present revision applicants preferred this civil revision application.

3. The learned counsel appearing for the revision applicants submits that, when earlier proceedings for the same relief were dismissed in default by the court, in that event subsequent proceedings for the same relief are not maintainable in view of Order IX Rule 9 (1) of the Code of Civil Procedure. The respondent is precluded for bringing a fresh proceeding on the same cause of action and for the same relief. It is further submitted that by lapse of time certain rights were accrued to the present revision applicants and those rights cannot be taken away merely on the ground of interest of justice. It is further submitted that judgment and order under challenge is otherwise perverse and illegal. The learned counsel for the revision applicants invited my attention to the provisions of Order IX Rule 9 of Code of Civil Procedure and submitted that once a suit is dismissed in default, same cannot be restor