Delhi District Court
Dscwa vs ExWorking Committee & Registrar Of ... on 8 January, 2016
IN THE COURT OF SH. TARUN YOGESH
SCJ/RC (CENTRAL), THC/DELHI
MCA11/15
Unique ID No. : 02401C0533242015
DSCWA
Through its President: Dr. Lakkho Mal &
Sh. O. P. Nim ............... Appellant
Vs.
Exworking Committee & Registrar of Societies .......Respondent
Date of institution of appeal : 06.10.2015
Date on which judgment was reserved : 08.01.2016
Date on which judgment was pronounced : 08.01.2016
JUDGMENT
1. Appellant DSCWA through its President Dr. Lakkho Mal (hereinafter referred as plaintiff) has filed its miscellaneous civil appeal against order dated 11.11.2014 passed by Ld. Civil Judge, Central District, Tis Hazari Courts, Delhi for setting aside impugned order and directing restoration of its application u/s 340 Cr.P.C. to its original number.
2. As gleaned from appeal, plaintiff's suit against defendant and its application u/s 340 Cr.PC was dismissed in default by Ld. Trial Court on 11.11.2014. Subsequently, an application under Order IX Rule 9 r/w sec. 151 CPC dated 25.11.2014 was filed by plaintiff for restoration of suit and application u/s 340 Cr.PC which was heard and allowed vide order dated 11.08.2015 by restoring the main suit, but application u/s 340 Cr.PC was not restored.
DSCWA Vs. ExWorking Committee Page 1
3. Impugned order of Ld. Trial Court has been assailed by plaintiff interalia upon following grounds :
3.a That application u/s 340 Cr.PC was dismissed by Ld. Trial Court upon wrong assumption that plaintiff was not interested in pursing its application.
3.b That appellant's absence was neither intentional nor deliberate but on the ground of being held up in traffic and due to serious illness of the eldest brother of applicant.
3.c That appellant (applicant) had been pursuing his suit for last 14 years and attending his application u/s 340 Cr.PC regularly and diligently since its filing.
4. Dr. Lakkho Mal, President of plaintiff DSCWA has addressed his submissions and matter is listed today for order.
5. Having heard his submissions, it is apt to refer to Order XLIII Rule 1 of Code of Civil Procedure, 1908 which provides for appeal from orders. Relevant legal provision is reproduced as under for reference: "1.Appeal from orders. An appeal shall lie from the following orders under the provisions of section 104, namely: "(a)..........
(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. In the present case in hand, since plaintiff's application filed under Order IX Rule 9 r/w sec. 151 CPC for restoration of its suit was DSCWA Vs. ExWorking Committee Page 2 allowed by Ld. Trial Court, so, no appeal of plaintiff will lie for assailing the order dated 11.08.2015 restoring its suit and plaintiff can seek his remedy by moving proper application before Ld. Trial Court for restoration of its application u/s 340 Cr.PC.
7. Appeal filed by plaintiff for assailing order dated 11.08.2015 of Ld. Trial Court being misconceived and not maintainable is accordingly dismissed.
Copy of order be sent to Ld. Trial Court.
Appeal file be consigned to Record Room.
Announced in open court (Tarun Yogesh) on 08th January, 2016. SCJ/RC (Central),THC/Delhi DSCWA Vs. ExWorking Committee Page 3