Noble Enterprises vs Raj Pal Chopra and Others

S.D. Anand, J.—The petitioner-defendant is in revision against the impugned order dated 05.09.2007 vide which the learned Trial Court, while allowing the plea filed by the respondents-plaintiffs under Order 9 Rule 9 of the Code of Civil Procedure, ordered the restoration of the suit. It was held that there were sufficient grounds for the restoration of the suit.

The only grievance of the learned Counsel for the petitioner is that the plea under Order 9 Rule 9 of the CPC could not have been validly entertained inasmuch as a similar plea had earlier been dismissed on merits.

The averment made on behalf of the petitioner is not correct. It is apparent from the record that the respondents - plaintiffs had earlier filed a plea under Order 9 Rule 4 of the CPC which was rejected by the learned Trial Court by observing that a plea, for the restoration of a suit, was not maintainable and that it would lie only under Order 9 Rule 9 of the Code of Civil Procedure. It is obvious, even otherwise, that a plea under Order 9 Rule 4 would have been competent only if both the parties were absent on the date the suit had been dismissed in default. In the present case, the suit was ordered to be dismissed in default of appearance on behalf of the respondents -- plaintiffs. The petitioner -- defendant was represented at that point of time.

In the light thereof, it is apparent that the subsequently entertained plea was not incompetent.

In the light of foregoing discussion, the petition is held to be devoid of force and is ordered to be dismissed.

The stay order dated 19.12.2007 passed by this Court shall stand vacated forthwith.

The vacation of the stay order shall be intimated to the learned Trial Court forthwith.