Ms. Ritu Bahri, J.: - Challenge in this petition is to the order dated 05.06.2012 (Annexure P-3) passed by the Civil Judge (Junior Division), Gurgaon, whereby plaint of the plaintiff-petitioner has been rejected and order dated 26.02.2013 (Annexure P-8), vide which application filed by the petitioner under Order 9 Rule 4 read with Section 151 of the Code of Civil Procedure (for short ‘CPC’) for restoration of the suit, has been dismissed.

2. M/s H.K.S. Developers Pvt. Ltd.-plaintiff (petitioner herein) filed a suit on 01.05.2010 (Annexure P-1) on the basis of agreement to sell dated 27.07.2006. Last date for registration of the sale deed was 27.09.2006. In the suit, the plaintiff-petitioner was claiming possession of the suit land as per terms of the agreement dated 27.07.2006. Upon notice, the defendantrespondent had appeared and filed an application for rejection of the plaint, which was decided by the trial Court vide order dated 21.03.2012 and the plaintiff was directed to deposit deficient Court fee within one month, failing which, the plaint would stand rejected. The plaintiff-petitioner did not file requisite Court fee within one month and thereafter, on 05.06.2012 the following order (Annexure P-3) was passed:-

“Present: None.

Plaintiff was ordered to deposit the Court fees within one month from the order dated 21.03.2012. But, the Court fees is not deposited till date. Now, in compliance of the order dated 21.03.2012, the plaint of the plaintiff is rejected. File be consigned to the record room after due compliance.

Sd/-

(Sandeep Yadav)

CJ (JD) GGN/05.06.12

3. A perusal of the aforesaid order shows that on account of non deposit of the Court fee, the plaint was rejected. Thereafter, the plaintiffpetitioner made an application (Annexure P-4) under Order 9 Rule 4 read with Section 151 CPC for restoration of the suit. Along with the same, an application under Section 5 of the Limitation Act (Annexure P-5) was also filed for condoning the delay in filing the application. Vide order dated 26.02.2013 (Annexure P-8) passed by the Civil Judge (Junior Division), Gurgaon, both the applications were dismissed.

4. Mr. Ashok Aggarwal, learned senior counsel, has vehemently argued that the order dated 05.06.2012 (Annexure P-3) was passed when parties had not appeared before the trial Court and the suit had been dismissed for non-prosecution. He has further contended that the application under Order 9 Rule 4 CPC was maintainable for restoration of the suit. Order 17 Rule 2 and 3 CPC lays down the procedure that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9 CPC. The discretion to decide the suit is limited only in cases, where a party which is absent, has led some evidence or has examined substantial part of its evidence. In support of his contention, he has referred to the judgments delivered in Prakash Chander Manchanda Vs. Smt. Janki Manchanda, AIR 1987 SC 42, Rameshwarnath Vs. Ranjit Singh, 1988 (2) RRR 26 (Pb.), B. Janakiramaiah Chetty Vs. A.K. Parthasarthi, AIR 2003 SC 3527 and Nallini Janardhanan Vs. Elamana, 2009 (5) RCR 544.

5. Learned counsel for the respondent, on the other hand, has referred to the judgment passed by a Full Bench of the Andhra Pradesh High Court in Molugu Ram Reddy Vs. Molugu Vittal Reddy, 2012 (3) RCR (Civil) 731, which has been followed by a Co-ordinate Bench of this Court in Mahesh and others Vs. Suresh and others, CR No.772 of 2014 (decided on 11.02.2015). He has further relied upon a judgment passed by this Court in Raj Kumar Vs. Maha Singh alias Mahesh and others, CR No.2327 of 2011 (decided on 14.08.2013) and contended that as per the order dated 05.06.2012, the trial Court had rejected the plaint of the plaintiff-petitioner on account of non deposit of Court fee. As per Section 2 (2) CPC, a decree includes rejection of the plaint. Hence, the said order was appealable under Section 96 of the CPC. Any