ORDER

1. This civil revision has been preferred by the applicants/plaintiffs challenging order dtd.21.4.2011 passed by 3rd Additional District Judge (Fast Track) Begamganj, District Raisen to the Court of 3rd Additional District Judge, Raisen in Misc. Appeal No.25/2006 affirming the order dtd. 7.8.2006 passed by Civil Judge Class-II, Begamganj, District Raisen in MJC No.2/2006 whereby applicants/plaintiffs' application under Order 9 Rule 9 CPC was dismissed as barred by limitation, which has been affirmed by appellate Court, even after condoning the delay in filing of application under Order 9 rule 9 CPC.

2. Facts in short are that, a civil suit for eviction on the grounds available under section 12(1) of the M.P. Accommodation Control Act, 1961 (in short 'the Act') was filed by the original plaintiff-Bhagwan Das, (now dead, through LRs-the applicants) against the respondent in which the applicants/plaintiffs' evidence was over and two witnesses of defendant were also examined, and lastly on 23.3.2005 case was fixed for examination of defendant's witness-Mamta Sharma but at this stage the plaintiffs or their counsel did not appear, resultantly trial Court dismissed the suit for want of prosecution. An application for restoration of civil suit under Order 9 rule 9 CPC was filed on 4.5.2005 by applicants/plaintiffs for restoration of civil suit. As the application was barred by limitation of 9 days, therefore, an application under section 5 of the Limitation Act was also filed.

3. Upon service of summons, the application was replied by the defendant with the prayer of its dismissal.

4. Trial court recorded evidence of the applicants and respondent and upon consideration of the fact that on 23.3.2005 the applicant Ramvati was present in the court but did not appear and holding the reason of plaintiffs’ non-appearance to be insufficient, dismissed the application under section 5 of the Limitation Act and resultantly dismissed the application under Order 9 rule 9 CPC also vide its order dtd.7.8.2006. Upon filing misc. appeal by the applicants/plaintiffs, the aforesaid order was affirmed by appellate Court vide its order dtd. 21.4.2011. However, vide paragraph 10 of its order, appellate Court condoned the delay in filing of application under Order 9 rule 9 CPC, but dismissed the misc. appeal holding it to be barred by three days.

5. Learned counsel for the applicants submits that on 23.3.2005 the suit was listed for further evidence of the defendant, therefore, presence of the plaintiffs/applicants was not required and only their duly engaged counsel was to appear, who only could cross-examine the defendant's witness-Mamta Sharma and in presence of already available evidence of the plaintiffs as well as of defendant, trial Court had no jurisdiction to dismiss the suit for want of prosecution and it should have passed the decision on merits even in absence of plaintiffs/applicants or their counsel. He further submits that without taking into consideration the length of delay of 9 days, trial court had committed illegality in dismissing the application under Section 5 of the limitation Act as well as application under Order 9 rule 9 CPC and despite condoning the delay in filing of application under Order 9 rule 9 CPC, appellate Court committed illegality in dismissing the misc. appeal as barred by limitation of 3 days at the time of passing of final order. With these submissions, learned counsel prays for setting aside the impugned orders.

6. Learned counsel appearing for the respondent/defendant supports the impugned orders and prays for dismissal of the civil revision.

7. Heard learned counsel for the parties and perused the record.

8. First of all, it is relevant to mention here that application under Order 9 rule 9 CPC was barred by 9 days only and upon filing application under Order 9 rule 9 CPC, the application was dismissed by trial Court on the ground of delay, however appellate court has, vide paragraph 10 of impugned order dtd.21.4