ORDER

This miscellaneous appeal under Order 43 Rule 1(u) of CPc has been filed by appellant against the order dated 13/7/2023 passed in Case No. MIC/316/2018 by 15th District Judge, Gwalior in MJC No. 316/2018; whereby, the application filed by appellant under Order IX Rule 13 CPC for setting aside ex parte judgment and decree dated 28/4/2011 passed in Civil Suit No. 7-

B/2011 has been rejected and order dated 6/9/2023 passed in Case No. MJC No. 354/2023 passed by 15th District Judge, Gwalior whereby, application filed by appellant under Order IX Rule 9 read with Section 151 CPC has been rejected.

2. Briefly stated facts of the case are that an ex-parte judgment and decree has been passed against the appellant vide judgment dated 28/4/2011 in Civil Suit No. 7-B/2011. When appellant got knowledge, he filed an application under Order IX Rule 13 CPC for setting aside ex parte judgment and decree, however, said application has been dismissed for want of prosecution as on the date of hearing, nobody appeared on behalf of appellant to contest the case, therefore, appellant preferred an application under Order IX Rule 9 CPC for restoration of his application under Order IX Rule 13 CPC; however, same has been turned down by impugned order dated 6/9/2023 holding that application under Order IX Rule 9 is not maintainable so far as it relates to restoration of application under Order IX Rule 13 CPC is concerned as same is applicable to original suit proceedings only.

3. Heard.

4.Admittedly, as application under Order IX Rule 9 read with Section 151 of CPC bearing MJC No.354/2023 was filed by appellant for restoration of his application filed under Order IX Rule 13 of CPC bearing MJC No.316/2018 and not for restoration of his civil suit. And, as per the amended provisions of section 141 of CPC, whereby vide Amendment Act 104 of 1976 an explanation was added to the aforesaid Section, it is very much clear that against an order (ROOPESH CHANDRA VARSHNEY) JUDGE of dismissal of an application filed under Order 9 Rule 9 or Rule 13 of CPC, an application lies under Order 9 Rule 9, r/w section 141 of CPC. Amended section 141 of C.P.C. is as follows:-

“141. Miscellaneous proceedings. - The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

[Explanation.- In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.]

5. In the instant case, appellant filed an application under Order IX Rule 9 read with Section 151 of CPC for restoration of his application filed under Order IX Rule 13 of CPC, instead of filing an application under Order IX Rule 9 read with Section 141 of C.P.C. It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction. Therefore, in the opinion of this Court learned Trial Court has committed jurisdictional error in dismissing the application filed by appellant under Order IX Rule 9 CPC holding the same not maintainable.

6. Accordingly, while setting aside the impugned order dated 6/9/2023 passed by 15th District Judge, Gwalior in MJC No. 354/2023, learned trial Court is directed to decide the application filed by appellant under Order IX Rule 9 CPC on its own merits.

7. Appeal stands disposed of with the aforesaid direction. JPS/-