The second application for restoration of a prior application falls under Article 137 of the Limitation Act, allowing three years for filing, not the 30 days under Article 122.

Order :

MUNNURI LAXMAN, J.

1. The present writ petition has been directed against the common order dated 12.03.2024 passed by the learned Commercial Court No.2, Jodhpur in Civil Misc. Case No.32/2023 (N.C.V. No.03/2023), whereunder two applications preferred by the respondent-plaintiff under Order 9 Rule 4 read with 51 of CPC, were allowed.

2. The first application was filed to restore the original suit, which was dismissed in default for non-prosecution on 10.07.2018. The said application was filed by the plaintiff after two days of dismissal of the original suit and such application was also dismissed on 01.10.2021 for want of prosecution. The plaintiff filed the second application on 03.01.2023 to restore the first application. Though the provision of law mentioned in both applications as under Order 9 Rule 4 read with 151 C.P.C., the first application must be under Order 9 Rule 9 and the second application must be under Section 151 of C.P.C.

3. The plaintiff filed the original suit for specific performance in the year 2008. The suit was dismissed for default on 10.07.2018 at the stage of framing of issues. The plaintiff filed the first application to restore the said suit though quoted provision under Order 9 Rule 4 read with 151 C.P.C. The application should be treated as an application filed under Order 9 Rule 9 of C.P.C. The said application was also dismissed in default. The second application is filed to restore the first application and the provision quoted was Order 9 Rule 4 of C.P.C. read with 151 of C.P.C. In fact, such application should be under Section 151 of C.P.C. only.

4. The court below after hearing the parties allowed the said two applications by the impugned common order and consequently, the suit was restored.

5. In the above factual matrix, the learned counsel for the writ-petitioner/defendant has submitted that the court below should not have allowed two applications by a common order and he ought to have allowed the second application then, decided the first application.

6. The second contention of the learned counsel for the writ- petitioner/defendant is that the second application should have been filed within 30 days in terms of Article 122 of Limitation Act but the second application was filed after more than 1 year 5 months. The said second application should have been accompanied by the application under Section 5 of the Limitation Act, which is not done. Therefore, the order impugned requires to be set aside.

7. Per contra, the learned counsel appearing for the respondent/plaintiff has submitted that the learned trial judge heard two applications together and passed the orders satisfying the reasons given by the plaintiff for non-appearance on the dates of dismissal of the suit and the first application. According to him, there is no illegality in passing such order.

8. The learned counsel for the respondent/plaintiff further submitted that the Article 122 of the Limitation Act would apply only to the applications filed to restore the suit, appeal, review or revision and such Article would not apply to any other misc. applications like the second application. According to him, in the present case, the appropriate Article for second application is 137 of Limitation Act. Learned counsel has placed reliance on the decision rendered by the High Court of Telengana in the case of K. Sudhakar Reddy Vs. Ind. Bank Housing Limited, reported in 2007 (6) ALD 476.

9. I have considered the rival submissions advanced by learned counsels and carefully perused the impugned order as well as the material available on record.

10. In the backdrop of the above arguments, it is relevant to refer to the Articles 122 and 137 of Limitation Act, which reads