Judgement Key Points

( 1 ) BEING aggrieved by the order dated 14-1-2005 passed by Additional district Judge, Shujalpur in MJC No. 26/2004, whereby the application filed by the appellant under O. 9, R. 4, C. P. C. for setting aside the order dated 5-11-2004 and for restoration of Civil Suit No. 12-A/01 has been dismissed, the present appeal has been filed.

( 2 ) SHORT facts of the case are that appellant filed a suit for declaration and permanent injunction against the respondent in the Court of Additional District Judge, shujalpur. This suit was registered as 152-A/01 and was fixed for 12-3-2003 on the application filed by the appellants under O. 6, R. 16, C. P. C. On this date at the time when case was called, neither appellants were present nor counsel was present. Hence learned Court below dismissed the suit in default. Immediately, thereafter an application under O. 9, R. 4, C. P. C. was filed by the appellants wherein it was prayed that order be set-aside on the ground that appellant No. 3, who is also an Advocate appeared in the Court at about 12 o'clock. At that time Court was busy in sessions trial. It was also alleged that Vishnu Narayan joshi is counsel for appellants No. 1 and 2, who is not well, therefore, he could not appear before the Court. The application was registered as MJC No. 26/04. Application was opposed by the respondents on various grounds and it was prayed that application filed by the appellants be dismissed. After recording of the evidence learned Court below dismissed the application. Aggrieved by the impugned order dated 14-1-2005, present appeal has been filed.

( 3 ) LEARNED counsel for the appellants submit that impugned order passed by the court below is illegal and deserves to be set-aside. It is submitted that application was filed on that very date.

( 4 ) LEARNED counsel for respondents submit that the suit was dismissed under O. 9, r. 8, C. P. C. , while the application was filed under O. 9, R. 4, C. P. C. , which is not maintainable. It is submitted that suit was filed in presence of some of the respondents, therefore, it will be deemed that the suit was dismissed under O. 9, R. 8, C. P. C. Application ought to have been filed under O. 9, r. 9, C. P. C. It is further submitted that no doubt application for restoration was filed, but it was not supported by an affidavit. To fill up the lacuna on the next date affidavit was filed which cannot be accepted. It is submitted that since litigation was pending for more than last 16 years, therefore, negligence on the part of the appellants is not tolerable. The application could have been filed under O. 9, R. 9, C. P. C. because the suit was dismissed in presence of some of the respondents. Hence it shall be deemed that the suit was dismissed by the learned trial Court in exercise of powers conferred under O. 9, R. 8, C. P. C. However, only because of wrong provisions were mentioned, therefore, application cannot be dismissed. For this reliance is placed on M. P. Revenue nirnaya, 1969 (1) Govardhan Das v. Sitabai, wherein Hon'ble Supreme Court has held that,"jurisdiction of the Court cannot be challenged on the ground that application was under wrong section, while power to give relief existing under the same section by the same authority. "

( 5 ) SO far as filing of affidavit at later stage is concerned, learned counsel submits that restoration application was filed at the end of the day, therefore, the affidavit has been filed on the next day. It is submitted that since oral evidence was adduced by the parties, therefore, filing of affidavit was of no consequence. On 12-3-2003, when the suit was dismissed the case was fixed for consideration of application filed under O. 6, R. 16, C. P. C. , therefore, on that day there was no justification on the part of the Court below to dismiss the suit. At the most the application under O. 6, R. 16, C. P. C. could have been disposed of on that date.

( 6 ) IN the matter of G. P. Srivastava v. R. K. Raizada and others reported in

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