JUDGEMENT
A.B.Srivastava -
(1.)BY means of this revision under section 115 of the CPC the plaintiff- revisionist has sought quashing of an order of the II Additional Civil Judge, Kanpur dated 21-10-1981, whereby he rejected an application of the plaintiff for restoration of an application under Order 9, Rule 9 CPC. which was dismissed for default and want of steps,
(2.)IT appears a restoration application under. Order 9. Rule 9 CPC was moved by the plaintiff for restoring the original suit which had been dismissed for default. The said application was registered as Misc. Case No. 2 of 1979. However, due to absence of the plaintiff (revisionist) and want of steps, the said application for restoration was dismissed on 11-11-1980. On 7-1-1981 an application purporting to be under section 151 CPC was moved by the plaintiff-revisionist for restoration of the earlier restoration application. The same was opposed by the defendant-opposite party on the ground of being beyond limitation.
The learned Civil Judge; upheld the objection of the defendant and observing that the application for restoration also lay under Oder 9. Rule 9 CPC and not section 151 CPC to which 30 days' limitation under Article '22 of the Limitation Act: was applicable, rejected the same as being beyond limitatioa in the absence of any application for condonation of delay.
The learned counsel for the parties have been heard
(3.)THE sole question arising for consideration is, as to the limitation applicable to an application for restoration of an application tinder Order 9 Rule 9 CPC. THE contention on behalf of the plaintiff revisionist is that limitation in such a matter will be governed by Article 137 of the Limitation Act whereas according to the defendant-opposite party article 122 will apply.
As far as the maintainability of an apppllcation for restoration of this nature is concerned, there can be no doubt about the proposition that it will lie under Order 9 Rule 9 CPC itself in so so far as the application under Order 9 Rule 9 CPC for restoration of a suit is a proceeding in a court of Civil Jurisdiction within the meaning of section 141 CPC. Consequently the procedure provided for restoration of suits would be applicable to restoration of a miscellaneous case under Order 9 Rule 9 CPC also It has been laid down in Natboo Prasad v. Singhai Kapoor Chand, AIR 1976 MP 136, by a full bench of the said court that when an application under Order 9 Rule 9 is dismissed for default, the applicant can apply for restoration of the same under Order 9 Rule 9 CPC or may appeal under order 43 rule 1 (6) CPC. In Mst. Noor Nahar Bewa v. Babindra Nath Deo, AIR 1988 Cal. 538, a Special Bench of the Calcutta High Court has held that the application for restoration of miscellaneous case under Rules 4, 9 or 13 of Order 9 which was dismissed for default would lie under Order 9 read with section 141 CPC. As regards limitation for filing the said application for restoration, there being no specific provision ia the limitation Act 1963, such application for restoration would be governed by Article 137 of the Act and could be Sled within a period of three years. It was so held dispite the observation that it is highly inequitable to allow a party to avail longer period of three years under article 137 of Limitation Act to make an application under Order 9 for setting aside the order of dismissal of an application made under order 9 CPC.
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