R.D. Kothari, J.

1. Origin of this petition, in a sense, lay in obscurity because it arises from non-existent suit. To be precise, application for "restoration" (Exh. 112) of suit came to be allowed by the trial Court in exercise of power under Sec. 151 of C.P.C. Hence, the present petition. This petition, thus, therefore, raises question of scope of Sec. 151 of C.P.C. and whether suit can be restored in exercise of inherent powers? Few relevant facts are thus:

1.1. The respondent had instituted Regular Civil Suit No. 1442 of 1995 before the Senior Division Court at Baroda in substance praying that petitioner herein be restrained from interfering or obstructing the plaintiff, in taking delivery of Lot Nos. 11 and 12 material. Earlier, the petitioner herein had issued advertisement to dispose of scrap and allied materials in 1994-95. Respondent's bid was accepted in respect of Lot Nos. 11 and 12. This bid was accepted in 1995.

1.2. It is the say of the petitioner that it has issued delivery order on 23-2-1995. The respondent did not take delivery. Thereafter, some communication has taken place between the parties and finally, respondent has filed present suit against the petitioner. In the said suit, respondent had prayed for interim injunction. Said application was partly allowed by learned trial Court by order dated 19-12-1996. Said order was challenged in A.O. before this Court by petitioner i.e. Appeal From Order No. 268 of 1997. In the said A.O., learned Advocate for respondent had placed on record the letter received by him from his client. In pursuance to that letter, this Court has disposed of A.O. and has also passed an order that in view of that, suit be also treated as disposed of. This Court had passed said order on 15-7-1997. Thereafter, on respondent's application (Exh. 78), learned trial Court had passed an order on 6-2-1998 directing the petitioner to hand over the disputed material to the plaintiff. The petitioner had filed review application wherein the petitioner has pointed out that High Court has already disposed of the suit, and therefore, respondent's application is without jurisdiction. The trial Court passed a detailed order on review application and same was rejected by learned trial Court. The petitioner filed M.C.A. No. 782 of 1998 against the said order of the learned trial Court. Said M.C.A. was disposed of by this Court on 8-5-1998 in view of the statement made by learned Advocate for respondent that respondent would lift the Lot Nos. 11 and 12 within 15 days. Thereafter, learned trial Court has passed an order below Exh. 1 on 15-5-2008 that suit is disposed of in view of High Court's order in A.O. No. 268 of 1997. Thereafter, respondent has submitted an application on 16-9-2008. In his short application, applicant had prayed to restore the suit. Learned trial Court, after hearing the learned Advocates for the parties, was pleased to allow the application by order dated 16-3-2010. Propriety and validity of this order is herein challenged by the petitioner.

2. Heard learned Senior Advocate Shri Manish R. Bhatt with learned Advocate Ms. Mauna Bhatt on behalf of the petitioner. Learned Advocate Mr. Bhatt has submitted that he has instructions to appear on behalf of learned Advocate Mr. B.S. Nilak for the respondent.

3. Learned Senior Advocate Shri Manish R. Bhatt for the petitioner has, after drawing attention to the facts of the case and to the relevant material on record, has pointed out that in the circumstances of the case, the order passed by the learned trial Court below Exh. 112 is bad and illegal. It was submitted that suit was disposed of as early as on 15-7-1997 by this Court and that granting of application by the learned trial Court in 2010 was bad and illegal.

4. While allowing the application, learned trial Court has observed that suit is not disposed of by way of dismissed for default nor it is dismissed for "want of plaintiff's evidence", and therefore, Order 9 of C.P.C. would not b