ORDER

The petitioner has filed this civil revision under section 115 of Code or Civil Procedure, 1908 (In short “CPC) being aggrieved by the impugned order dated 24/08/2023 passed by 8th Civil Judge, Junior Division, Indore in MJC no. 486/2019, whereby the trial Court has dismissed the application under section 151 of C.P.C. 2/ Fact of the case in brief is that the respondent/plaintiff instituted a plaint against the petitioner/defendant before the trial Court for eviction under M.P. Accommodation Control Act on 05/01/2018. Thereafter, the Court had given so many opportunities to the respondent/plaintiff to pay court fees, but the court fees was not paid and on 29/11/2018, for want of payment of court fees and for want of prosecution, the trial Court dismissed the suit. Then, on 17/05/2019, the respondent/plaintiff submitted an application under Order 9 Rule 9 of C.P.C for restoration of the plaint and the Court restored the same as MJC no. 486/2019. During pendency of the said MJC, the petitioner preferred an application under section 151 of C.P.C challenging maintainability of the said proceeding under Order 9 Rule 9 of C.P.C, but by the impugned order dated 24/08/2023, the trial Court dismissed the application. Hence, this civil revision has been preferred before this Court.

3/ Learned counsel for the petitioner submits that the impugned order passed by the trial Court suffers from error of law.

Dismissal of the suit for want of court fees would tantamount to rejection of the plaint under Order 7 Rule 11 (b)(c) of C.P.C read with proviso clause of CPC and therefore, appeal would lie, but he respondent/plaintiff failed to deposit requisite court fees. Provision of Order 9 Rule 9 of C.P.C is not applicable in the instant case, therefore, the proceedings of MJC no. 486/2019 is not maintainable. Hence, the impugned order be set aside.

4/ Learned counsel for the respondent opposed the aforesaid prayer and prays for its rejection by submitting that the provision of Order 7 Rule 11 of CPC is not applicable in the instant case because suit has been dismissed on the main ground of want of prosecution, therefore, it may be restored under Order 9 Rule 9 of C.P.C as well as section 151 of C.P.C. The impugned order is just and proper and does not call for any interference by this Court.

5/ Heard learned counsel for both the parties and perused the record.

6/ From perusal of the impugned order, it appears that at earlier occasion, vide order dated 29/11/2023, the trial Court has dismissed the plaint of the plaintiff on the ground of want of requisite court fees and non-appearance of plaintiff and his counsel, therefore, the respondent preferred an application under Order 9 Rule 9 of C.PC and section 151 of C.P.C, which is pending before the trial Court for its adjudication. During pendency of the said proceeding, the petitioner has preferred this interim application under section 151 of C.PC 7/ Hon'ble Calcutta High Court in the case of Kalipado Ghosh and another Vs. Smt. Abhoyabala Dassi and others reported in AIR 1980 CALCUTTA73 has held as under : “In the instant case the order for dismissal of the suit was passed before the appearance of the defendants- petitioners. It was also not the case of the petitioners that that very order was passed in the absence of the plaintiff.

In that case the plaintiff could invoke the aid of Order 9 Rule 4. The suit in question was dismissed for non- prosecution. For restoration of such a suit, no specific provision has been made out in the Civil Procedure Code.

The provision of Section 151 C. P. C. shall not be exercised when there are specific provisions in the Code.

In the absence of any specific provision and for the purpose of ends of justice,”

8/ Jammu and Kashmir High Court in the case of Mst. Hajira Vs. Mst. Hanifa and another reported in AIR 1999 JAMMU AND KASHMIR 17 has held as under : “13. So now if