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2011 DIGILAW 927 (MP)

Narendra Kumar Rathor v. State of M. P.

2011-08-12

K.K.TRIVEDI, SUSHIL HARKAULI

body2011
ORDER 1. Heard 2. In this intra-Court appeal, the appellant is challenging the order of a learned Single Judge on the ground that vital record was over-looked by the learned Single Judge while holding that there was no requirement in the policy that the person to be selected for the post of Guru-ji (teacher) should be a local resident. 3. It has further been argued by the learned Counsel for the appellant that this over-sight took place because the learned Counsel for the appellant (who was the petitioner before the learned Single Judge) could not reach the Court when the case was called out and the case was decided without hearing him. 4. Upon being asked why he did not seek restoration on the principles of Order IX Rule 9, CPC, the learned Counsel replied that he did not do so because the order had been passed by the learned Single Judge 'on merits'. 5. This common misconception must be dispelled. Unless the order has been passed and is permissible to be passed under Order XVII Rule 3, CPC the provisions of Order IX apply. See: AIR 1946 All. 353 (FB) and also AIR 1970 All. 257 (FB). The decision in AIR 1918 Mad. 143 (FB) is a departure only to the limited extent that when the order purports to be passed under Order XVII Rule 3, Order IX cannot be invoked on the ground that the circumstances did not justify passing of the order under that provision. But, even this decision of Madras says that if the order passed is not under Order XVII Rule 3 then Order IX will apply. 6. Thus, the law is that if a decision is rendered (whether on merits or otherwise) in absence of the plaintiff or petitioner, he has a right to apply for restoration of the case, provided of course that the litigant is able to establish that there was sufficient cause for non-appearance when the case was called on for hearing. This right is not curtailed only because the Court or the Tribunal has examined the merits of the matter. Rules 8 and 9 of Order IX and Rules 2 and 3 of Order XVII, CPC may not apply in terms to writ proceedings, but the principles apply. 7. The litigant also has the right to apply for review if any ground for review permissible in law, exists. 8. Rules 8 and 9 of Order IX and Rules 2 and 3 of Order XVII, CPC may not apply in terms to writ proceedings, but the principles apply. 7. The litigant also has the right to apply for review if any ground for review permissible in law, exists. 8. In view of aforesaid remedies available to the appellant we are not inclined to interfere in this appeal. 9. Accordingly, this appeal is dismissed with liberty to pursue such of the aforesaid remedies as the appellant may be: advised.