ORDER

1. This revision under section 115 of CPC has been filed against the order dated 30.4.2025 passed by Second Additional Sessions Judge, Gohad, District Bhind passed in MCA No. 25/2022.

2. It is really surprising that the Presiding Officer was exercising the civil jurisdiction but still he has signed the order in the capacity of Second Additional Sessions Judge, Gohad, District Bhind. Either the concerning Presiding Officer is not aware of distinction between civil jurisdiction and criminal jurisdiction or he is negligent in signing the orders.

3. The facts necessary for disposal of this revision in short are that respondent / plaintiff filed a civil suit. On 17.5.2006, a direction was given to the respondent / plaintiff to pay the process fee for service of notice on defendant No. 3. However, the process fee was not paid. Thereafter, on 26.8.2006, an application was filed by the respondent / plaintiff seeking permission to pay the process fee which was allowed. In spite of that, process fee was not paid. On 26.8.2006, 25.9.2006, 16.11.2006, and 23.12.2006, process fee was not paid for service of notice on defendant No. 3. On 25.1.2007, neither plaintiff nor his counsel was present. Even the process fee was not paid. Accordingly, trial Court dismissed the suit by holding as under :-

^^vr% vkt oknh Òh mifLFkr ugÈ gS vr% çdj.k oknh dh vuqifLFkfr esa ,oa ryokuk is'k u djus d¢ dkj.k fujLr fd;k tkrk gSA^^

It appears that after 10 years, respondent / plaintiff filed an application under Order 9 rule 4 CPC along with section 5 of the Limitation Act. The application filed under section 5 of Limitation Act was rejected and, consequently, application filed under Order 9 rule 4 CPC was also dismissed as barred by time.

4. Being aggrieved by the said order passed by the trial Court, respondent / plaintiff preferred miscellaneous appeal which was registered as MCA No. 25/2022. Said miscellaneous appeal was allowed by order dated 22.7.2022 passed by Additional Judge, Gohad, District Bhind to First Additional District Judge, Bhind and the delay in filing the application under Order 9 rule 4 CPC was condoned and the matter was remanded back to the trial Court to decide the application filed under Order 9 rule 4 CPC on merits.

5. Being aggrieved by the said order, petitioner preferred Civil Revision No. 451/2022 which was allowed by Co-ordinate Bench of this Court by order dated 03.10.2024 and the matter was remanded back to the appellate court to decide the question of maintainability of the appeal and then, to decide the appeal on merits without getting influenced by the previous order dated 22.7.2022. Thereafter, it is the case of petitioner that by impugned order dated 30.4.2025, appellate court has held that although the suit was dismissed on account of non-payment of process fee but since the plaintiff was not present and two of the defendants were present, therefore, the suit can be presumed to have been dismissed under Order 9 rule 8 CPC and thus, the application which was filed by the respondent /plaintiff under Order 9 rule 4 CPC can be considered as an application filed under Order 9 rule 9 CPC and, therefore, appeal filed by the respondent / plaintiff against the rejection of his application for restoration of the civil suit under Order 43 rule 1 (c) of CPC is maintainable. Present civil revision has been filed against this findings given by the appellate Court with regard to the maintainability of the appeal under Order 43 rule 1 (c) of CPC.

6. Challenging the order passed by the Court below, it is submitted by Shri Agrawal that on 25.1.2007, the suit was dismissed on account of nonpayment of process fee. Since the suit was not fixed for hearing, therefore, it cannot be said that the suit was dismissed under Order 9 rule 8 CPC. Accordingly, it is submitted by Shri Agrawal that the findings recorded by the appellate Court that it can be presumed that the suit was dismissed under Order 9 rule 8 CPC is bad in law and thus, such finding i