MOHINI KAPUR, J.— The petitioner and non-petitioner No. 2, Raghu-nath, 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.l, Jaipur city, considered it necessary to examine the plaintiffs under order 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 dateds and on 15.10.85. the defendant Non-petitioner No 1, moved an application that the suit of the plaintiff be dismissed under order 9 Rule 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 circumstances 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 order 9 Rule 12 C.P.C. plaintiff Raghunaths 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 reasons 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 given a sufficient cause for his absence on 16.10.85 and as such his suit could not be restorted. 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 order 9 R. 12 C.P.C. or it can be said to have been dismissed under order 10 Rule 4(2) C.P.C. and in both cases an application for restoration has to be moved under order 9 Rule 9 C.P.C. and any order of the court refusing to accept such an application is appealable under order 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 order 9 but under Section 151 C.P.C. and any order passed on an application under Section 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.

4. For the purposes of appreciating the contentions raised on behalf of both the sides the provisions of order 9 Rule 12 and order 10 R. 4 may be reproduced here.

O.9, R. 12-Consequence of non attendance, without sufficient cause shown, of party ordered to appear in person.-Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person or shows sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the forgoing rules applicable to plaintiffs and defendants, respectively, who do not appear.

O.10 R.4-Consequence of refusal or inability of pleader to answer (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

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