IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL th ON THE 18 OF JULY, 2023 CIVIL REVISION No. 399 of 2023 BETWEEN:-

KRISHNA KUMAR @ BHULLU S/O SHRI SHIVPRASAD SAHU, AGED ABOUT 40 YEARS, OCCUPATION: FARMING R/O VILLAGE PIPARIYA TEHSIL NIWAS DISTRICT MANDLA (MADHYA PRADESH)

.....PETITIONER (BY SHRI SANJAY KUMAR VERMA-ADVOCATE)

AND

1. CHAMRU S/O LATE SUKKULAL JHARIA R/O VILLAGE PIPARIYA TEHSIL NIWAS DISTRICT MANDLA (MADHYA PRADESH)

2. REVENUE INSPECTOR, N I WA S DISTRICT MANDLA (MADHYA PRADESH)

3. HIMANSHU SONI, HALKA PATWARI P.C. NO. 12, R.I. CIRCLE NIWAS, TEHSIL NIWAS, DISTRICT MANDLA (MADHYA PRADESH)

4. COLLECTOR, M ANDLA DISTRICT MANDLA (MADHYA PRADESH)

.....RESPONDENTS This revision coming on for admission this day, the court passed the following:

ORDER

Heard on IA No.9472/2023, which is an application for condonation of delay.

2. As explained by learned counsel for the applicant there is no delay Signature Not Verified in filing this civil revision, therefore, office objection is hereby ignored and application under Section 5 of the Limitation Act filed on behalf of the applicant is hereby disposed off/closed.

3. This civil revision has been preferred by the applicant/defendant challenging the order dated 6.3.2023 passed by II Civil Judge Jr. Div. Niwas, District Mandla in civil suit No.16-A/22 whereby defendant/applicant's application under Order 7 Rule 11, Order 9 Rule 9 r/w Sec.151 and 94 CPC has been dismissed.

4. Learned counsel for the applicant submits that previously the respondent 1-Chamru along with three others instituted a suit for declaration of title and permanent injunction, which for want of filing process fees for service of defendant 4-State of M.P. was dismissed on 14.01.2022, thereafter the plaintiffs of the previous suit namely Santosh Kumar, Dev Lal, Chamru Lal and Shiv Kumari have preferred an application under Order 9 Rule 9 CPC dtd. 9.4.2022 for restoration of the previous suit, which is pending and during pendency of the said application under Order 9 Rule 9 CPC, the present/second civil suit has been filed by Chamru only, which in the light of pendency of proceedings under Order 9 Rule 9 CPC and in view of the dismissal of previous suit on 14.01.2022 is not maintainable. He submits that learned court below without taking into consideration the provisions contained in Order 9 Rule 9 CPC and without considering the dismissal of previous suit, has erred in dismissing application under Order 7 Rule 11 CPC.

5. Heard learned counsel for the applicant/defendant and perused the record.

6. From bare perusal of order dtd. 14.01.2022 passed by I Civil Judge Jr. Division, Niwas, District Mandla it is clear that the previous suit filed Signature Not Verified by Santosh Kumar, Dev Lal, Chamru Lal and Shiv Kumari was dismissed for want of filing of process fee for defendant 4-State, therefore, apparently the suit was dismissed under Order 9 Rule 2 CPC and if the plaintiffs wanted to get the civil suit restored, the application under Order 9 Rule 4 CPC was maintainable and the provisions of Order 9 Rule 9 could not have been invoked. As such prima facie the application under Order 9 Rule 9 CPC is not maintainable and for that purpose the concerning court may pass the appropriate order.

7. So far as dismissal of application under Order 7 Rule 11 CPC is concerned, apparently previous suit was filed by four persons Santosh Kumar, Dev Lal, Chamru Lal and Shiv Kumari and the present suit has been filed only by Chamru, which otherwise is maintainable in view of the provisions under Order 9 Rule 4 CPC, certainly subject to the law of limitation.

8. In view of the aforesaid, in my considered opinion learned court below has not committed any illegality in rejecting the application under Order 7 Rule 11 CPC and in passing the impugned order.

9. Accordingly this civil revision fails and is hereby dismissed.

10. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL)

JUDGE ss S