The main legal point established in the judgment is that the court's decision was based on the interpretation of Rule 5 of Order (IX) of the Code of Civil Procedure, which deals with the dismissal of a suit where the plaintiff fails to apply for fresh summons after the original summons is returned unserved.

1. Heard the learned counsel for the parties.

2. The present revision application is filed under Section 115(1) of the Code of Civil Procedure against the order dated 22.12.2009 passed by learned Munsif, Hazaribagh in Misc. Case No. 09/2005, whereby, the learned Munsif has set aside the dismissal order of the suit dated 8.9.05 and restored Title Suit No. 39/2004.

3. Learned counsel for the petitioners submitted that title suit No. 39/2004 filed by the plaintiff was order to be dismissed under Rule 5 of Order (IX) CPC and therefore the only option which was available with the court below was to ask the plaintiff to file a fresh suit under Sub-section 2 of order 9 Rule 5 of the CPC. But instead of passing such order, the court below while passing the order dated 22.12.2009 failed to appreciate this legal provision contained in Sub Rule 2 of Rule 5 of Order (IX) and passed an order for restoration of the suit, which is not legally permissible. It is further submitted that the restoration application along with limitation petition was preferred by the Opp. Party and the learned court below has also passed the order with regard to condonation of delay without hearing the present petitioner. It is also submitted that the present petitioners filed their appearance on 15.12.2006 and thereafter they filed rejoinder dated 20.2.2006. It is submitted that the court below has failed to appreciate the provision of law as contained in Sub-Rule 2 of Rule 5 of Order (IX) and only on this ground, the present revision application may be allowed and thereby impugned order dated 22.12.2009 may be set aside. In support of his contention, learned counsel for the petitioners has refereed to and relied upon the judgment reported in AIR 2000 Bombay 307 (Vishwanath Satwaji Gaikwad Vs. Laxman Abaji Kawale and Ors) and by referring para 12 of the judgment, he submitted that the said judgment is applicable to the facts and circumstances of the present revision application.

4. As against this, learned counsel for the Opp. party submitted that it is not open for the petitioner to raise this plea before this Court as they have already participated in the restoration proceeding and they also adduced their evidence before the learned court below. It is also submitted that after pronouncement of the said order by the court, the plaintiff has acted upon it and the defendants have also appeared and participated in the suit proceedings. Therefore, now it is not permissible for the petitioners to raise such plea and challenge the order impugned dated 22.12.2009 by way of filing this revision application at this belated stage.

5. Considering the aforesaid rival submissions advanced by the learned counsel for the parties and from perusal of order dated 22.12.2009 passed by the learned court below, it appears that the said order was passed in restoration application preferred by the opp. Party under Rule 5 of Order (IX) read with Section 151 of the Code of Civil Procedure and the court below also passed an order of setting aside the order dated 8.9.05 and thereby, passed an order of restoration of the original suit i.e. title suit No. 39/04. It appears that immediately thereafter, present revision application has been filed on 10.2.2010. Therefore, it can not be said that the revision application is filed at belated stage. Now this order is required to be analyzed in view of provision as contained in Rule 5 of Order (IX) of the Code of Civil Procedure, which is reproduced as under;

5. Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons.-{Subs. by Act 24 of 1920, s.2, for the original sub-rule (1).} [(1) Where, after a summons has been issued to the defendant or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to ap