JUDGMENT
Bakhshish Kaur, J.
1. This revision is directed against the impugned order dated 30.8.1996, passed by the learned Additional District Judge, Hisar, whereby the appeal preferred by the petitioners was dismissed only on the ground that it is not maintainable.
2. The facts which are not much in dispute are that on 17.8.1988 Gurdeep Kaur and other plaintiffs (now petitioners) (hereinafter referred to as ‘the plaintiffs’), had filed a suit whereby they had challenged the judgment and decree dated 22.5.1987 passed in civil suit No.360 of 1987 re: Om Parkash’and others v. Krishan Kaur, passed by Sh. P.K. Saini, the then Sub Judge, 1st Class, Fatehabad. The suit was contested, issues were framed and the case was at the stage of recording evidence when the suit was dismissed under Order 9 Rule 8 of the Code of Civil Procedure on account of no-appearance of the plaintiffs.
3. The plaintiff moved an application under Order 9, Rule 9, Code of Civil Procedure for the restoration of the suit. The said application was also dismissed. Since the trial court had not accepted the application of the petitioners for setting-aside the orders for restoration of the suit, therefore, they preferred an appeal. The learned Additional District Judge vide the impugned order had dismissed the appeal only on the ground of maintainability saying that where an application for restoration is dismissed in default then the appeal under Order 43(b) of the Code is not maintainable.
4. I have heard Shri Dinesh Ghai, learned counsel for the petitioners and Shri Ajay Kaushik, counsel for the respondents.
5. The provision envisaged under Order 43 Rule 1 clause are quite clear and specific. Clauses (c) and (c) of Order 43 Rule 1 read as under: –
“1. Appeal from orders. An appeal shall lie from the following orders under the provisions of Section 104, namely:-
(c) an order under rule 9 of Order IX rejecting an application (in case open to appeal) for an order to set-aside a decree passed ex parte;
6. The provision is not required to be restricted to the restoration of the suit in respect of an order passed. In fact this matter is covered by the decision of the Full Bench rendered in Nathu Parsad v. Singhal Kapurchand, AIR 1976 Madhya Pradesh 136, wherein it has been observed that an application under Order 9, Rule 9, Civil Procedure code is a proceeding in a Court of Civil jurisdiction within section 141. It is laid down by their Lordships as under:-
“An application under Order 9, Rule 9, Civil P.C. is a proceeding in a Court of Civil jurisdiction within Section 141. The object and purpose of Section 141 is that for economy of words it was unnecessary to repeat the whole of the procedure in
providing for procedure for an application or any other proceeding original or ancillary. An application under Order 9, Rule 9, Civil P.C. is not an interlocutory application. By its nature, an application under Order 9, Rule 9, is an independent application and is registered as an independent Misc. Judicial case. Hence an application lies to restore application which was dismissed for default which application had been made for setting-aside the dismissal of a suit for default. AIR 1962 SC 903, AIR 1966 SC 1888, AIR 1966 Andhra Pradesh 263 and AIR 1969 Guj. 308 followed. Followed: AIR 1968 Bom. 250 held not good law in view of AIR 1966 SC 1888.”
Resultantly, it was held that an appeal lies from an order dismissing for default or on merits an application under Order, 9, Rule 9 of the Code of Civil Procedure.
7. On the contrary, the learned counsel for the respondents placed reliance on Daya Chand v. Ram Phal, AIR 1972 Punjab and Haryana 45. The facts of this case are somewhat different, ft is a case where the suit was dismissed due to non-compliance of the court’s order by not depositing the process fee etc.
8. For the aforesaid reasons, the impugned order cannot be sustained. This revision is allowed. The appellate Court is directed to list the case for arguments and thereafter decide this appeal after giving opportunity to the parties on merits. The record of this case be sent to the learned District Judge, Hissar, who either himself decide or entrust the same to the Additional District Judge, for purposes of disposal of the appeal. The appellate Court is also directed to dispose of the appeal within two months of the receipt of a copy of this order. The parties througt counsel are directed to appear before the learned District Judge, Hisar on 14.1.2002.