Prabhu Sharan and Others Vs. Ganesh Ram and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/920444
SubjectCivil
CourtRajasthan High Court
Decided OnJul-06-2011
Case NumberCase No. CW 9 of 2009
JudgeMAHESH BHAGWATI, J.
ActsCode of Civil Procedure (CPC) , 1908 - Order 9 Rule 9; Limitation Act - Section 5; Constitution of India - Article 227
AppellantPrabhu Sharan and Others
RespondentGanesh Ram and Others
Advocates:Mr. Gaurav Gupta, Adv
Excerpt:
1. by way of the instant writ petition, the defendant-petitioners have impugned the order dated 18.10.2008, whereby additional civil judge (jr. division), kotputli, district jaipur allowed the application filed by the plaintiff-respondent no. 1 under order 9 rule ix cpc as also the application filed under section 5 of the limitation act and restored the suit at its original number, which was dismissed vide order dated 13.9.2005 for non appearance, non prosecution and non production of the evidence on behalf of the plaintiff-respondent no.1. 2. heard learned counsel for the petitioners and carefully perused the relevant material on record including the impugned order. 3. the hon'ble apex court in catena of cases has consistently held that the high court should exercise powers under article 227 of the constitution only in the event when the impugned orders are found to be perverse, contrary to material and they result in manifesting injustice. the hon'ble apex court has also held that these powers should not be usually exercised to interfere with the pure findings of fact of the courts below. 4. since the order dated 13.9.2005 was not passed by the learned trial court on merits, as such court below is found to have rightly passed the order dated 18.10.2008 allowing the applications under order 9 rule ix and under section 5 of the limitation act. the impugned order is neither found to be perverse nor contrary to the material on record, hence the writ petition filed by the petitioner deserves to be dismissed at the threshold. 5. for the reasons stated above, the writ petition fails and the same being bereft of any merits stands dismissed in limine.
Judgment:

1. By way of the instant writ petition, the defendant-petitioners have impugned the order dated 18.10.2008, whereby Additional Civil Judge (Jr. Division), Kotputli, District Jaipur allowed the application filed by the plaintiff-respondent no. 1 under Order 9 Rule IX CPC as also the application filed under Section 5 of the Limitation Act and restored the suit at its original number, which was dismissed vide order dated 13.9.2005 for non appearance, non prosecution and non production of the evidence on behalf of the plaintiff-respondent no.1.

2. Heard learned counsel for the petitioners and carefully perused the relevant material on record including the impugned order.

3. The Hon'ble Apex Court in catena of cases has consistently held that the High Court should exercise powers under Article 227 of the Constitution only in the event when the impugned orders are found to be perverse, contrary to material and they result in manifesting injustice. The Hon'ble Apex Court has also held that these powers should not be usually exercised to interfere with the pure findings of fact of the courts below.

4. Since the order dated 13.9.2005 was not passed by the learned trial court on merits, as such court below is found to have rightly passed the order dated 18.10.2008 allowing the applications under Order 9 Rule IX and under Section 5 of the Limitation Act. The impugned order is neither found to be perverse nor contrary to the material on record, hence the writ petition filed by the petitioner deserves to be dismissed at the threshold.

5. For the reasons stated above, the writ petition fails and the same being bereft of any merits stands dismissed in limine.