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Judgment
The petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 16.11.2007 passed by
Second Civil Judge, Class-I, Umaria in MJC No.22/2000 thereby rejecting the application preferred by the petitioner under Order 9 Rule 4 of the
CPC.
The petitioner has filed a civil suit in the Court of Second Civil Judge, Class-II, Umaria for declaration of the family settlement deed dated
26.01.1991 as null and void and also prays for permanent injunction. The said civil suit was dismissed by the trial Court vide order dated
19.09.2000 on account of nonappearance of the petitioner as well as for non-payment of process fee for issuance of notices to defendants no.3
and 5. The petitioner filed an application under Order 9 Rule 4 of the CPC seeking restoration of the suit. In the said application it was submitted
that the petitioner has engaged a counsel for conducting the case who had instructed her that she would be required to appear as and when
directed. He further submits that the petitioner has already given the necessary charges for payment of process fee and Court expenses to her
counsel. The Second Civil Judge, Class-I, Umaria vide order dated 16.11.2007 has rejected the said application and declined to restore the suit to
its original number. While rejecting the application, learned Court has observed that the petitioner was not diligent in pursuing her suit. The Court
has also disbelieved the reasons for non-appearance of the petitioner on 19.09.2000. Against the order dated 16.11.2007, the petitioner filed an
appeal under Order 43 Rule 1 of the CPC in the Court of Additional District Judge, Umaria as the appeal was not maintainable, the petitioner,
therefore, filed an application under Order 23 Rule 1 of the CPC seeking withdrawal of the appeal with liberty to file an appropriate petition before
this Court. The Additional District Judge vide order dated 28.11.2011 allowed the said application and dismissed the appeal as withdrawn with
liberty to the petitioner to pursue her remedies in accordance with law. The petitioner has, therefore, filed the present writ petition.
Learned counsel for the petitioner argues that the reason of non-appearance of the petitioner on 19.09.2000 and also for non issuance of
summons to defendants no.3 and 5 was satisfactorily explained by the petitioner. However, the trial Court has failed to consider those reasons. He
further submits that the petitioner being a lady aged about 60 years and, therefore, she was entirely dependent on her counsel in connection with
the said suit. He further submits that the petitioner is ready to deposit some cost if the suit is restore to its original number.
Nobody is appeared on behalf of the respondents even though served.
In such circumstance, as nobody is appeared on behalf of the respondents, I allowed this petition. The impugned order dated 16.11.2007
passed in MJC No.22/2000 is hereby set aside subject to payment of cost of Rs.3,000/- which would be deposited by the petitioner in the office
of District Bar Association at Umaria and the trial Court is directed to restore the said civil suit to its original number and proceed with the matter
after issuing notices to both the parties.