JUDGMENT A S Chandurkar, J. - Rule. Heard finally with consent of counsel for the parties. The petitioner is the original plaintiff which is aggrieved by the order passed by the trial Court below Exhibit-92 rejecting the application that was filed by the said plaintiff for setting aside the order of dismissal of the suit as passed against the legal heirs of defendant No.1. 2. The facts relevant for adjudicating the challenges raised in the present writ petition are that the plaintiff Society filed a suit for specific performance of an agreement dated 16/05/1988 by which the defendant No.1 had agreed to sell land admeasuring 1H.03R in favour of the Society. Other ancillary reliefs were also sought for. During pendency of the suit the defendant No.1 expired. By moving an application at Exhibit-87 which was allowed, the legal heirs of defendant No.1 were included in the plaint on 02/03/2009. However on the ground that the plaintiff had not taken any steps for filing an application for issuance of summons to secure the presence of legal heirs, the trial Court on 11/02/2011 dismissed the suit against the legal heirs of defendant No.1. Thereafter on 03/02/2011 the trial Court passed an order below Exhibit-41 holding that civil Court had no jurisdiction to entertain the suit and that the suit was also filed beyond the period of limitation. The plaintiff filed an appeal challenging the said order. In that appeal it was also prayed that the order dated 11/02/2011 be also set aside. The appellate Court by its judgment dated 30/04/2014 allowed the said appeal and restored the suit for adjudication. The respondent No.4 herein challenged that order by filing Appeal Against Order No.55/2014. By judgment dated 24/08/2015 that appeal came to be dismissed as a result of which the order restoring the suit attained finality. After restoration of the suit the plaintiff filed another application at Exhibit-92 on 30/10/2015 praying that the order dated 11/02/2011 be set aside and the suit be restored against the legal heirs of defendant No.1. This application was opposed by defendant No.4 and by order dated 04/01/2017 the trial Court rejected the said application. Being aggrieved the plaintiff has challenged the said order. 3. This application was opposed by defendant No.4 and by order dated 04/01/2017 the trial Court rejected the said application. Being aggrieved the plaintiff has challenged the said order. 3. Shri Masood Shareef, learned counsel for the petitioner submitted that after the suit was dismissed against the legal heirs of the defendant No.1 on 11/02/2011 the trial Court considered the question of jurisdiction and from 03/03/2011 to 24/08/2015 the aspect of jurisdiction was being adjudicated. He submitted that the order dated 11/02/2011 had been challenged in R.C.A. No.183/2012 wherein the order dated 11/02/2011 was also challenged. However there was no adjudication of that question. After the suit was restored, the application was immediately moved on 30/10/2015 and hence the trial Court ought to have allowed that application. He submitted that since the suit was for specific performance of the agreement entered into by the defendant No.1, the presence of his legal heirs was necessary. He then submitted that the trial Court was not justified in dismissing the suit against the legal heirs on the ground that the plaintiff had not filed any application for issuance of suit summons. According to him after the legal heirs were brought on record the Court ought to have issued summons without requiring the plaintiff to make an application in that regard. He referred to the provisions of Order XII Rule 4, Order I Rule 10(4) and Order V Rule 1 of the Code of Civil Procedure, 1908 (for short, the Code) in that regard. According to him the trial Court ought to have allowed the application in question to enable an adjudication on merits. The impugned order therefore was liable to be set aside. 4. Shri M. P. Khajanchi, learned counsel for the respondent No.4 supported the impugned order. According to him in view of the fact that the suit has been dismissed against the legal heirs of defendant No.1, the provisions of Order IX Rule 9 of the Code were applicable. On that basis remedy of filing a miscellaneous appeal for challenging the order passed below Exhibit-92 was available. The learned counsel placed reliance on the decision of Honourable Apex Court in Civil Appeal No.7764 of 2019 (Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and ors. vs. Tuticorin Educational Society and ors.) dated 03/10/2019 to urge that in this backdrop the writ petition was not liable to be entertained. The learned counsel placed reliance on the decision of Honourable Apex Court in Civil Appeal No.7764 of 2019 (Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and ors. vs. Tuticorin Educational Society and ors.) dated 03/10/2019 to urge that in this backdrop the writ petition was not liable to be entertained. He submitted that the order dated 11/02/2011 was not passed under provisions of Order IX Rule 4 of the Code. It was then submitted that since the order dated 11/02/2011 had been challenged in the appeal that was filed by the original plaintiff and no orders were passed in that regard by the appellate Court, it was deemed that said relief was not granted by the appellate Court. The plaintiff ought to have challenged the order of the appellate Court to the extent it refused to grant that prayer. It was further submitted that the trial Court after considering the entire record rightly found that there was a long delay in taking steps to have the suit restored against the legal heirs of defendant No.1. Since that delay was caused by the plaintiff itself there was no reason to interfere with that order. It was thus submitted that the writ petition was liable to be dismissed. 5. I have heard the learned counsel for the parties at length and I have perused the documents placed on record. It is not in dispute that after the death of defendant No.1 his legal heirs were brought on record as noted in the order passed below Exhibit-1 on 02/03/2009. The order dated 11/02/2011 indicates that till that date the plaintiff did not take steps of filing an application for issuance of suit summons to the legal heirs so as to secure their presence before the Court. It is on that count that the suit was dismissed against the said legal heirs. In this regard if the provisions of Order IX Rule 2 of the Code are perused, they indicate that if the suit summons has not been served upon the defendant on account of failure of the plaintiff to pay the Court fees or postal charges or failure to supply copies of the plaint as required, then the Court can make an order dismissing the suit. Under provisions of Order IX Rule 4 of the Code the plaintiff can file a fresh suit or he can apply to the Court for setting aside the order of dismissal. Under provisions of Order IX Rule 8 of the Code when only the defendant appears and the plaintiff does not appear when the suit is called for hearing, the Court can pass an order dismissing the suit. In such situation the provisions of Order IX Rule 9 of the Code preclude the plaintiff from preventing to file a fresh suit in respect of the same cause of action. An order passed under provisions of Order IX Rule 9 of the Code can be challenged by filing an appeal under provisions of Order XLIII Rule 1(c) of the Code. In the present case the reason given for dismissing the suit against the defendant No.1(a) is that the plaintiff did not take steps by filing an application for issuing suit summons to the said defendant. It is thus seen that this order of dismissal does not fall squarely under provisions of Order IX Rule 2 of the Code as there is no failure on the part of the plaintiff to pay the Court fees or postal charges to enable service of summons but it is on account of failure to take steps by filing an application for issuance of suit summons. In any event such dismissal as per the order dated 11/02/2011 cannot be said to be the outcome of the provisions of Order IX Rule 9 of the Code. Hence the order dated 11/02/2011 not being one passed under Order IX Rule 8 of the Code there is no question of any appeal being maintainable against the impugned order. That contention raised on behalf of the respondent No.4 cannot be accepted. 6. It is an admitted position on record that after the suit was dismissed against defendant Nos.1(a) to 1(h) on 11/02/2011 the trial Court shortly thereafter on 03/03/2011 passed an order holding that it had no jurisdiction to entertain the suit. This order continued to operate until it was set aside in R.C.A. No.183/2012 on 30/04/2014 and was confirmed on 24/08/2015 in Appeal Against Order No.55/2014. Thus, at least from 03/03/2011 to 24/08/2015 there was no suit pending on the file of the trial Court. Within a short period thereafter the plaintiff moved an application below Exhibit-92 on 30/10/2015. This order continued to operate until it was set aside in R.C.A. No.183/2012 on 30/04/2014 and was confirmed on 24/08/2015 in Appeal Against Order No.55/2014. Thus, at least from 03/03/2011 to 24/08/2015 there was no suit pending on the file of the trial Court. Within a short period thereafter the plaintiff moved an application below Exhibit-92 on 30/10/2015. It is thus clear that on the suit being restored and that order being confirmed by this Court, the plaintiff had taken immediate steps to also restore the suit against defendant Nos.1(a) to 1(h). The trial Court therefore was not justified in observing that there was huge delay and the application as filed below Exhibit-92 suffered from laches. The plaintiff could not have applied for restoration of the suit after the trial Court held on 03/03/2011 that it has no jurisdiction to entertain the suit. 7. As regards the reason for dismissal of the suit against the legal heirs of defendant No.1, it is seen that under the Code there is no provision by which the plaintiff is required to file an application to enable summons to be issued to the legal heirs of defendant No.1 who were brought on record. Ordinarily after the legal heirs are brought on record the Court is expected to pass an order directing summons to be issued to such parties brought on record. As per paragraph 245 of the Civil Manual a list of cases in which the plaintiff or his lawyer omits to apply for fresh summons to the defendant after a period of a month are required to be brought up in Court to prevent such cases being lost sight of and with a view to remind the plaintiffs or their counsel of the necessity of taking requisite steps. It is no doubt true that the plaintiff could have requested the trial Court to issue suit summons to the legal heirs but under the Code the plaintiff was not required to make an application to the Court to issue such suit summons. Be that as it may, it is found that in the facts of the present case the trial Court ought to have allowed the application below Exhibit-92. Be that as it may, it is found that in the facts of the present case the trial Court ought to have allowed the application below Exhibit-92. The period spent in prosecuting the Regular Civil Appeal and thereafter the Appeal Against Order on being excluded, it is clear that the plaintiff had taken necessary steps within a short period of dismissal of the suit against the defendant Nos.1(a) to 1(h). Another aspect which cannot be ignored is the fact that the said legal heirs had not objected to restoration of the suit against them by setting aside the order dated 11/02/2011. It is the defendant No.4 who alone is contesting that application. In that view of the matter it is found that the plaintiff was not liable to be non-suited as against the defendant Nos.1(a) to 1(h) on procedural grounds. The procedural sword cannot outweigh the interests of justice. To enable adjudication of the proceedings on merits, I am inclined to set aside the order passed by the trial Court below Exhibit-92. 8. Accordingly the order dated 04/01/2017 passed by the trial Court below Exhibit-92 is set aside. The said application is allowed as a result of which the suit would stand restored against the defendant No.1(a) to 1(h). The proceedings in the suit are expedited. Rule is made absolute in aforesaid terms. The Writ Petition is allowed in aforesaid terms with no order as to costs.