ORDER

1. This miscellaneous appeal is filed by the plaintiff under Order 41 rule 1(c) of CPC being aggrieved of order dated 29.10.2018 passed by learned 19th Additional District Judge, Bhopal in MJC No.481/2018 refusing to entertain an application under Order 9 rule 9 of CPC on the ground that suit was dismissed in view of lack of evidence vide order dated 11.7.2013 and said being passed under Order 17 rule 3 of CPC will be covered by the decision of Calcutta High Court in the case of Lalit Chandra Das and others v. Sushil Chandra Guha and another, AIR 1980 Calcutta 148 , therefore, appeal will be maintainable against the said order and not an application under Order 9 rule 9, CPC.

2. This Court requested Shri Ravish Chandra Agrawal, learned senior Advocate to guide this Court as to the correct legal position in this behalf.

3. Shri Ravish Chandra Agrawal, learned senior Advocate, graciously accepted and informed that in terms of the law laid down by Hon'ble Supreme Court in Mohandas and others v. Ghisia Bai and others, AIR 2002 SC 2436 in which it is held that if suit is fixed for leading evidence by plaintiff, instead of leading evidence, neither plaintiff nor his witnesses were pre