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Mohammad Iqbal v. Jamshed And Others - WRIT - C No. 12104 of 2006 [2006] RD-AH 4869 (1 March 2006)


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Heard the learned counsel for the petitioner.

This petition challenges the order dated 17.9.2003 passed by the trial court and order dated 10.11.2005 passed by the revisional court.

The trial court by the impugned order has allowed the restoration application of the respondent-plaintiff for restoring the suit which was dismissed for want of steps. The revisional court by the impugned order has dismissed the revision of the petitioner.

The petitioner is a third party. The court directed the respondent-plaintiff on the application of the petitioner to implead him as party-defendant in the suit. That order was not complied within time and steps were not taken, as such the suit was dismissed vide order dated 19.5.2002. Obviously since steps were not taken by the respondent-plaintiff, the dismissal order amounted to an order under Order IX Rule 2 C.P.C. and the restoration application would lie only under Order IX Rule 4 C.P.C. If the court is satisfied on the ground taken in the application or the affidavit of the plaintiff for the restoration, the suit is to be restored and further opportunity of steps may be given by the court. Order IX Rule 4 C.P.C. does not contemplate of giving an opportunity of hearing to the other party more especially a third party who is till now not a formal party to the suit. Therefore, if the trial court allowed restoration application and the revisional court has dismissed the revision of the petitioner third party, I do not find any infirmity in these orders. No interference in extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India is required.

The petition, having no force, is hereby dismissed.




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