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2014 DIGILAW 3263 (ALL)

Shrichand v. Chandra Prakash

2014-10-31

SATYENDRA SINGH CHAUHAN

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JUDGMENT Satyendra Singh Chauhan, J. This petition has been filed challenging the order dated 21.12.2005 passed by the Additional District Judge, Court No.7, Azamgarh, inter alia, on the ground that the revision was not maintainable before the Additional District Judge and appeal was maintainable. 2. The aforesaid aspect of the matter was completely overlooked by the Additional District Judge and thereafter he proceeded to decide the revision on merit and allowed the same. 3. The facts, in brief, are that a suit for permanent injunction was filed, which was dismissed in default and thereafter an application for restoration under Order 9 Rule 9 CPC was moved, which was dismissed. Thereafter, another application was moved, which was also dismissed. Then, third application for restoration was moved, which too was also dismissed and thereafter the said order was recalled and the application was allowed on merit. Against the aforesaid order, revision was filed. 4. Submission of learned counsel for the petitioners is that the revision was not maintainable in view of the provisions contained under Order 43 Rule 1(c) of CPC. 5. The relevant provisions under Order 43 Rule 1(c) of CPC are reproduced as under: "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 a case open to appeal) for an order to set aside the dismissal of a suit." 6. Learned counsel for the petitioners has submitted that there has been an amendment under Section 115 of CPC on 1.7.2002 and the said amendment also provides that where the appeal is maintainable, revisions would not be maintainable. 7. The case was taken up in the revised list. Counsel for the respondents has not responded. I have heard learned counsel for the petitioners and perused the record. 8. From perusal of the provisions contained under Order 43 Rule 1(c) of CPC as well as the amendment under Section 115 CPC, I am in full agreement with the argument advanced on behalf of the petitioners that the revision was not maintainable before the Additional District Judge. 9. Accordingly, the writ petition is allowed and the order dated 21.12.2005 is set aside and it will be open for the respondents to approach the learned District Judge for deciding the appeal.