1. This appeal under Order XLIII, Rule 1(w) [wrongly indicated as Rule 1(r)] is directed against order dated 25.10.2017 passed by Additional District Judge No. 3, Jodhpur Metro, whereby, the application filed by respondent No. 1 under Section 114 CPC read with Section 151 CPC and Order IX, Rule 9, 4, & 7 read with Section 151 CPC has been accepted and order dated 30.01.2015 passed in Civil Misc. Case No. 215/2012 has been recalled and the Original Application i.e. Case No. 16/2010 (45A/97) has been restored.

2. The respondent-plaintiff initiated proceedings for maintenance under provisions of the Hindu Adoptions and Maintenance Act, 1956 on 05.02.1997. The proceedings, after going through various stages, were apparently fixed at the stage of final arguments and applicant had filed her written arguments also when on 19.12.2011 the application in absence of the applicant/her counsel was dismissed for non-prosecution.

3. The applicant filed application under Order IX, Rule 9 CPC seeking restoration of the proceedings.

4. The said application also remained pending and on 30.01.2015 the restoration application, on account of nonappearance of the applicant, came to be dismissed in default.

5. An application was filed on 18.02.2015 titling it as application under Section 114 CPC read with Section 151 CPC and Order IX, Rule 9, 4, & 7 read with Section 151 CPC.

6. The application was resisted by the appellant-defendant.

7. The trial court by its order dated 25.10.2017 came to the conclusion that the reason for non-appearance of the applicant on 19.12.2011, when her original application was rejected for non-prosecution, was for a legal and justified cause and as while passing the order dated 30.01.2015 documents were not available on record, the same could not be brought to the notice of the Court and that if the said documents were taken into consideration, the order dated 30.01.2015 could not have been passed and, consequently, recalled the order dated 30.01.2015 and thereafter allowed the application seeking restoration of the original application, which was dismissed for non-prosecution on 19.12.2011.

8. It is submitted by learned counsel for the appellant that the trial court committed error in accepting the application of the respondent, inasmuch as, there is no provision in law for restoration of an application for restoration, which has been dismissed in default. It was submitted that provisions of Order IX, Rule 9 CPC are not applicable in case of dismissal of a restoration application and, therefore, the order impugned passed by the trial court deserves to be set aside.

9. Further submissions were made that the prayer for review under Section 114 CPC also was not maintainable as there was no error apparent on face of record so as to review the order dated 30.01.2015. Submissions were also made that the reason indicated by the applicant for non-appearance on 19.12.2011 were not germane and, therefore, the order impugned dated 25.10.2017 passed by the trial court deserves to be quashed and set aside.

10. The respondent No. 1 appearing in person supported the order impugned. It was submitted that the application was filed for review under Section 114 CPC and the trial court has rightly exercised the power of review qua the order dated 30.01.2015; as the respondent was prevented, by sufficient cause in not appearing before the Court on 19.12.2011, the trial court was justified in reviewing and setting aside the orders dated 30.01.2015 and 19.12.2011 and restoring the original application and, therefore, the order impugned does not call for any interference.

11. It was submitted that on 19.12.2011 when the matter was fixed, before that on 16.12.2011, the applicant had already sent a telegram indicating her inability to attend the proceedings, which was duly received by the Court and as the respondent pursuant to an order passed by the Central Administrative Tribunal was required to give her presence at Central School, Suratgarh whe