JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present petition is maintained by the petitioners under Article 227 of the Constitution of India, for quashing and setting the impugned order dated 08.06.2015, passed by learned Civil Judge (Junior Division), Court No.II, Hamirpur, District Hamirpur, H.P, in Civil Suit No.34 of 2011. 2. Brief facts giving rise to the present petition are that the petitioners/plaintiffs (hereinafter referred to as =plaintiffs') filed a suit for declaration against the respondents/defendants (hereinafter referred to as =defendants') to the effect that plaintiffs are in possession as tenants situated over the land bearing Khata No.196 min, Khatauni No.342 min, Khasra No.1026, measuring area 42/84 sq. meters, in Mohal Gandhi Nagar, Mauza Bazuri Tehsil and District Hamirpur, H.P and the entry shown in the column of possession is wrong, illegal and contrary to the factual position existing on the spot alongwith the suit for permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the shop and also not to dispossess the plaintiff forcibly by demolition of the same. In alternative, suit for mandatory injunction directing the defendants to restore the possession of the plaintiff in the said shop in case, they succeed in forcibly dispossessing the plaintiffs from the said shop during the pendency of suit. It is averred that the defendants have failed to file written statement within the statutory period of ninety days from the date of receiving the notice, therefore, they had filed an application under Section 148 CPC, for extension of time and ultimately the defendants had filed written statement alongwith counter claim on 6.9.2011. Thereafter, both the parties have filed replication to the written statement in the suit and counter claim, wherein it has been alleged that the suit was instituted by predecessor-in-interest of the petitioners, namely, Kishore Chand Verma and he had obtained all the relevant record qua the dispute from the concerned authorities and had kept the same in his custody during his lifetime. During the pendency of suit, Kishore Chand Verma (plaintiff) died on 18.12.2012 and consequent thereto the plaintiffs have suffered irreparable loss and hardships, as they have to start the whole case afresh by collecting the relevant record maintained by the deceased as well as from the relevant agencies. During the pendency of suit, Kishore Chand Verma (plaintiff) died on 18.12.2012 and consequent thereto the plaintiffs have suffered irreparable loss and hardships, as they have to start the whole case afresh by collecting the relevant record maintained by the deceased as well as from the relevant agencies. After the demise of Kishore Chand Verma, predecessor-in-interest of the plaintiff, application under Order 23 Rule 3 CPC, for placing on record the legal heirs of the deceased was moved by the plaintiffs for impleading the present plaintiffs as legal heirs of deceased Kishore Chand Verma, the same was allowed by the learned Court below. It is further averred that on the basis of plaint, written statement alongwith counter claim, replications of the respective parties, issues were famed and the case was fixed for plaintiffs evidence. It is further averred that after the sudden demise of the father of the plaintiffs, they went under depression and even one of the plaintiffs got himself treated at Regional Hospital, Hamirpur, as well IGMC Hospital, Shimla. After the death of predecessor-in-interest of the plaintiffs the present plaintiff, namely, Bhuvnesh being a responsible and elder male member in the family was bestowed to shoulder with family responsibilities and responsibilities of dealing with multiplicity and litigation pending before the learned Courts at Hamirpur. Though admittedly earlier all the litigations were being managed by the deceased Kishore Chand Verma and after his death the same was fallen as havoc on the entire family and consequent thereto the plaintiff, namely, Bhuvnesh had suffered with intense depression for years all together and undergone treatment initially at Regional Hospital, Hamirpur and subsequently at IGMC, Shimla. When the matter was taken up on 8.6.2015 before the learned Court below, learned counsel for the plaintiffs has moved an application for seeking one more adjournment for producing the plaintiffs witnesses for the reason that the plaintiff is suffering from fever, but the same was rejected for the reason that the same is not annexed with any prescription or medical slip and moreover the plaintiffs have already been granted sufficient opportunities to lead their evidence. It is further averred that the plaintiffs have not examined even a single witness and as such plaintiffs have failed to prove their contention qua injunction. Accordingly, suit is dismissed for want of evidence as well as want of prosecution. 3. It is further averred that the plaintiffs have not examined even a single witness and as such plaintiffs have failed to prove their contention qua injunction. Accordingly, suit is dismissed for want of evidence as well as want of prosecution. 3. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 4. Learned counsel appearing on behalf of the plaintiffs has argued that the learned Court below has failed to appreciate the fact that the plaintiff was precluded from leading evidence for the sufficient reason and the learned Court below should have granted more opportunity to the plaintiffs to lead their evidence. 5. On the other hand, learned counsel appearing on behalf of the defendants has argued that there is no ground to grant another opportunity to the plaintiffs to lead evidence despite given many opportunities and after giving last opportunity on two adjournments costs and then additional cost was imposed, but the plaintiffs have failed to produce the witnesses, when the suit was dismissed the only remedy available to the plaintiffs to file an appeal against the dismissal of the suit. 6. In rebuttal, learned counsel appearing on behalf of the plaintiffs has argued that the only remedy available by way of filing petition under Article 227 of the Constitution of India, as the impugned order passed by the learned Court below is perversed. 7. After going through the entire record of this case, this Court finds that the suit is pending adjudication in the learned Court below from the year 2011, the plaintiff was given many opportunities to produce plaintiff witnesses, but despite giving many opportunities the plaintiffs witnesses were not present. At this moment, suit of the plaintiff was dismissed for want of evidence i.e. for want of prosecution. I have gone through the law as cited by learned counsel appearing on behalf of the plaintiffs in Ram Gobinda Dawan and others vs. Smt. Bhaktabala and Ram Gobinda Dawan and others vs. Sunil Kumar Roy and another, 1971 (1) Supreme Court Cases, 387, wherein it has been held as under : ?To conclude Ex.7, in our opinion, does not operate as res judicata even against the claim of Subasini Dasi and her sons inasmuch as the matter was not heard and finally decided on merits after contest by the Land Acquisition Court. We have already pointed out that if the plea of res judicata is not accepted the decision of the two courts regarding Subasini Dasi's having in Plot No.9202 half share will have also to be sustained.? 8. The question involved in the present case is not with regard to the subsequent suit or whether the suit is barred by res judicata. The suit is barred by res judicata will arise only in that case and not in the present proceedings. So, the aforesaid judgment is not applicable in the present case. In State of Uttar Pradesh and another vs. Jagdish Sharan Agrawal and others, 2009 (1) Supreme Court Cases, 689, wherein it has been held as under : ?In the present case, the suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a party. So far the suit where the state was a party and amendments were made, the same was dismissed for non- prosecution. But the same was not dismissed under Order 9 Rule 8. Order 9 Rule 8 and Order 9 Rule 9 of CPC read as follows: ?8. Procedure where defendant only appears-Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. Decree against plaintiff by default bars fresh suit-1 Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.? (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.? Therefore Order 9 Rule 9 cannot be said to be applicable. The dismissal of the suit for non-prosecution was not a decision on merit. Consequently, the said order cannot operate as res judicata. Above being the position the High Court's order is clearly unsustainable and is set aside. The matter is remitted to the District Judge, Lalitpur to decide the proceeding on merit. Appeals are allowed but without any order as to costs.? 9. As has been held in the case law (supra), if the suit is dismissed under Order 9 Rule 8 CPC, it is not a decision on merits afresh, suit is not barred, but this is not the issue involved in the present revision petition and so it is not required to be discussed at this stage. The only issue involved in this case is that whether the impugned order passed by the learned Court below by not allowing another opportunity to lead evidence, requires interference under Article 227 of the Constitution of India or not. This Court finds that the learned Court below has granted many opportunities to the plaintiffs to lead their evidence and thereafter two opportunities, one after another, was granted on cost and also an additional cost. The Court cannot keep of watching the plaintiffs to lead their evidence by years together. The suit is pending from the year 2011. In these circumstances, this Court finds that this is not a fit case where the interference of this Court requires under Article 227 of the Constitution of India. 10. Accordingly, the petition is devoid of any merit and deserves dismissal, hence the same is dismissed. However, the parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.