Dismissal of a suit under Order 7 Rule 11 CPC and the appropriate recourse for the petitioner.

Suneet Kumar, J.

The plaintiff petitioner filed an original suit no.166 of 1997 for permanent injunction restraining the defendant 1st set from making any construction over Arazi No.241 as detailed in the plaint.

2. The defendant 1st set filed written statement and disputed? the claim of the plaintiff and also raised an objection regarding the valuation of suit and in sufficient court fee paid by the petitioner.

3. The trial court granted injunction on 14.3.1997. The issues was framed by the Trial Court on 9.4.1947 and was of the view that the valuation of the suit is Rs.3000/-, the plaintiff should accordingly amend the plaint and pay the requisite court fee.

4. According to the learned counsel for the petitioner, the plaintiff amended the plaint with regard to valuation. However, the deficient court fee was not deposited. It appears thereafter the court fell vacant for several years and on 17.11.2004, the suit was dismissed under Order 7 Rule 11 CPC. The petitioner instead of filing regular appeal preferred an application under Order 9 Rule 11 for restoration of the suit.

5. Against an order dismissing the suit under Order 7 Rule 11, a regular appeal would lie and not an and application under Order 9 Rule 11.

6. The learned counsel for the petitioner prays that the petitioner may be permitted to withdraw the writ petition with a liberty to approach the regular appellate Court.

7. In this view of the matter, the writ petition is dismissed. Dismissal of the petition would not preclude the petitioner from pursuing a regular appeal.

8. No order as to costs.