Patna High Court - Orders
Gurusharan Yadav vs The State Of Bihar & Ors on 10 April, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2241 of 2012
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Gurusharan Yadav
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Prabhas Ranjan
For the Respondent/s : Mr. Avnish Nandan Sinha Gp11
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
4 10-04-2014Heard learned counsel Mr. Prabhas Ranjan for the petitioner and learned counsel Mr. Rakesh Chandra for the respondents.
2. By the impugned order dated 18.01.2012 the learned court below has rejected the Miscellaneous Case No.03 of 2009 filed by the petitioner for restoration of Title Suit No.43 of 2001.
3. It appears that the said title suit was dismissed on 26.03.2009. The petitioner then filed an application under Order IX Rule 4 of the Code of Civil Procedure which was registered as Miscellaneous Case No.03 of 2009 for restoration of the said title suit. By the impugned order the court below has rejected the said application.
4. According to the learned counsel for the petitioner, on technical ground only the court below has rejected the Patna High Court CWJC No.2241 of 2012 (4) dt.10-04-2014 2 application. Although an application under Order IX Rule 4 of the Code of Civil Procedure is not maintainable because of the fact that the suit was dismissed under Order IX Rule 3 of the Code of Civil Procedure and the petitioner filed an application for amendment and to treat the application as an application under Order IX Rule 9 of the Code of Civil Procedure which was allowed but the court below rejected the application on the ground that the amendment was not carried on within the time granted by the court.
5. The learned counsel for the respondents submitted that an order passed under Order IX Rule 9 of the Code of Civil Procedure is appealable. The petitioner himself filed the application for treating the application as an application under Order IX Rule 9 of the Code of Civil Procedure.
6. Perused the order passed by the court below.
7. It appears that several witnesses have been examined. The court below has not considered these witnesses. The application has been rejected on the ground that the petitioner knowingly filed the application under Order IX Rule 4 of the Code of Civil Procedure instead of Order IX Rule 9 of the Code of Civil Procedure. Further when the application was filed by the petitioner for treating the said application as an application under Order IX Patna High Court CWJC No.2241 of 2012 (4) dt.10-04-2014 3 Rule 9 of the Code of Civil Procedure, the court below should have disposed of the said miscellaneous case treating the same as an application under Order IX Rule 9 of the Code of Civil Procedure, as it is admitted case that Order IX Rule 4 of the Code of Civil Procedure in the facts and circumstances of the present case is not applicable. Therefore, the order passed by the court below has not been passed under Order IX Rule 9 of the Code of Civil Procedure rather the court below has rejected the application under Order IX Rule 4 of the Code of Civil Procedure on the ground that the petitioner did not amend the provision of law within the time granted by the court and, therefore, the miscellaneous case was rejected.
8. In my opinion, this approach of the court below is hyper technical and, therefore, the impugned order is set aside. The matter is remanded back to the court below for fresh decision after hearing the parties treating the Miscellaneous Case No.03 of 2009 as an application under Order IX Rule 9 of the Code of Civil Procedure. Accordingly, this writ application is allowed.
(Mungeshwar Sahoo, J) Harish/-