SHYAM DEO KEWAT vs GOVIND KEWAT

The petitioners are aggrieved of order dated 29.04.2011 passed in Misc. Case No.3 of 2006 by which an application under Order IX Rule 4 CPC

has been rejected. Â

Petitioners are the plaintiffs in Title Partition Suit No.32 of 1995. When the plaintiffs did not appear on several dates and their counsel made an

endorsement on the order-sheet on 04.07.2002 and 19.08.2002 that he has got no instructions, on 17.12.2002 the suit was dismissed in default. Order

IX Rule 4 CPC provides that where a suit is dismissed under Rule 3, where neither party had appeared when the suit was called on for hearing,

subject to the law of limitation the plaintiff may bring a fresh suit or may apply for an order to set the order of dismissal aside. The petitioners have

pleaded that only on 03.08.2006 they came to know about the dismissal of title partition suit. However, during the trial in Misc. Case No.3 of 2006

which was registered on the application under Order IX Rule 4 CPC, the witnesses examined by the applicants did not support their stand. The trial

Judge has found that the petitioners actively participated in the trial of Title Partition Suit No.32 of 1995, more particularly, the petitioner- Ram Deo

Kewat was present in the Court on 18.01.2004 and 02.10.2004 and the petitioner-Manoj Kewat was present on 11.09.2004 in the court.Â

Apparently, a false plea was taken by the petitioners for restoration of Title Partition Suit No.32 of 1995.Â

Once it is found that the petitioners have taken a false plea in the judicial proceeding, challenge to the impugned order dated 29.04.2011 passed in

Misc. Case No.3 of 2006 must fail.Â

Accordingly, the writ petition is dismissed. Â