JUDGMENT :

K. MURALI SHANKAR, J.

Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to against the Judgment and decree dated 24.08.2020 of the learned Subordinate Judge, Kuzhithurai, made in CMA No. 4 of 2014, confirming the order and decreetal order dated 04.08.2011 on the file of the learned II Additional District Munsif, Kuzhithurai in I.A. No. 446 of 2010 in O.S. No. 761 of 2004 on his file.

1. The Civil Revision is directed against the Judgment passed in CMA No. 4 of 2014, dated 24.08.2020 on the file of the Subordinate Court, Kuzhithurai, confirming the fair and decreetal order passed in I.A. No. 446 of 2010 in O.S. No. 761 of 2004, dated 04.08.2011 on the file of the II Additional District Munsif Court, Kuzhithurai, dismissing the petition filed under Order 9 Rule 9 CPC.

2. The revision petitioners are the appellants/plaintiffs and they have filed the above suit in O.S. No. 761 of 2004 for demarcation and for permanent and mandatory injunction. After filing of the Commissioner's report, the plaintiffs have filed a petition in I.A. No. 51 of 2007 for amending the plaint to mention the correct extent of the “A” and “B” Schedule properties and the same was allowed 14.03.2007. It is also not in dispute that subsequently, the plaintiffs have filed another petition in I.A. No. 27 of 2010 alleging that the description of the property was left un-amended, sought to amend the description of the property to incorporate the extent of two schedule properties. It is also not in dispute that since the plaintiffs counsel have stated that they are not pressing the said application, the said application was ordered to be dismissed as not pressed on 05.10.2010. Thereafter, the plaintiffs have filed the petition in I.A. No. 446 of 2010 to restore the petition in I.A. No. 27 of 2010, which was dismissed as not pressed, alleging that the petition was dismissed as not pressed due to the inadvertence of their Advocate. The respondents have filed their counter opposing the petition and the learned District Munsif, after enquiry, has passed an order on 04.08.2011 dismissing the said petition. Aggrieved by the said order of dismissal, the plaintiffs have filed an appeal in CMA No. 4 of 2014 and the learned Subordinate Judge, Kuzhithurai, has passed the impugned Judgment on 24.08.2020 dismissing the appeal. Challenging the dismissal of the appeal, the plaintiffs have come forward with the present revision.

3. The learned District Munsif, by observing that the plaintiffs by filing the petition after petition, have been dragging on the suit, dismissed the petition. But, whereas the learned Appellate Judge by observing that the petition to restore the petition, which was dismissed as not pressed cannot be filed under Order 9 Rule 9 CPC and it can only be filed under Section 151 CPC and that since the present application could be taken as that it was filed under Section 151 CPC and not under Order 9 Rule 9 CPC, no appeal will lie under Order 43 CPC and as such, the appeal itself is not maintainable, dismissed the appeal.

4. No doubt, the Appellate Judge, has rightly applied the Judgment of the Hon'ble Supreme Court reported in Jet Ply Wood Pvt. Ltd. and Others vs. Madhukur Nowlakha and Others, 2006 (3) SCC 699 and gave a finding that the provisions of Order 9 Rule 9 CPC is not applicable to the petition filed for restoring the petition, which was dismissed as not pressed. But, the learned counsel for the revision petitioners would submit that after dismissal of the petition in I.A. No. 446 of 2010, dated 04.08.20211 by the learned District Munsif, the plaintiffs have filed the revision before this Court in CRP (MD) No. 26213 of 2012, but the Registry had returned the same questioning the maintainability of the revision, in view of the availability of the appeal remedy, before the Appellate Court against the order of dismissal of the petition filed under Order 9 Rule 9 CPC and that therefore, the plaintiffs have no other op