2025:HHC:20725 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.299/2017 Date of Decision: 01st July, 2025. Raj Kumari & Anr. .....Petitioners Versus Bimla Devi and Others …..Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioners: Mr. Mohit Thakur, Advocate. For the Respondents: None for respondents No.1 to 7, 18 and 19 though served. Respondents No.8 proceeded against ex parte. Respondents No.9 is stated to have expired. No notices issued to respondents No.10(i) to 10(vii). Mr. H.R. Jhingta, Advocate, for respondents No.12 to 17. Bipin Chander Negi, Judge (oral). Heard counsel for the parties and perused the record. 2. The present petitioners/plaintiffs before the learned trial Court, filed a Civil Suit bearing No.275/6 of 2010, for possession and declaration against the present respondents/defendants. The same was filed before the Court of the Civil Judge, Ghumarwin, 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 2025:HHC:20725 Bilaspur, HP. The suit so filed was dismissed in default on 09.07.2010. 3. An application for restoration under Order IX Rule 9 CPC was filed on 20.07.2010. In the application filed under Order IX Rule 9 CPC, some of the respondents/defendants were yet to be served. Therefore, in the said backdrop, on 16.01.2012, an application under Order 23 Rule 1 CPC was filed by the petitioners/plaintiffs before the learned trial Court. 4. Other than the aforesaid, while the application under Order IX Rule 9 CPC, was pending adjudication before the learned trial Court and service had yet to be effected on some of the respondents/defendants therein, some of the plaintiff and defendants in the lis, which had been dismissed in default, had died. 5. On 28.02.2012, the counsel appearing on behalf of the present petitioners/plaintiffs before the trial Court, withdrew the application filed under Order 23 Rule 1 CPC and application pending consideration under Order IX Rule 9 CPC. As a consequence whereof, the trial Court was of the view that on 3 2025:HHC:20725 account of the aforesaid withdrawal, applications filed under Order 22 Rule 4 CPC and under Order 1 Rule 10 CPC, pending consideration had also become infructuous. 6. Subsequent to the passing of the aforesaid order dated 28.02.2012, an application bearing CMA No.118/6 of 2012 was filed by the present petitioners/plaintiffs, under Section 151, for recalling of the order dated 28.02.2012. In the same, it was contended that the application filed under Order 23 Rule 1 CPC was only for withdrawal of the suit with liberty to filing a fresh suit. Other than the aforesaid, it was averred in the said application that the withdrawal of the application under Order 23 Rule 1 CPC and application under Order IX Rule 9 CPC was a bona fide mistake committed by counsel. The counsel also filed an affidavit to this extent, before the trial Court. 7. The aforesaid application so filed, under Section 151 CPC for recalling of order dated 28.02.2012, was dismissed, vide impugned order dated 16.05.2017. 4 2025:HHC:20725 The same is appended along with the petition as Annexure P-1. The reasons for dismissal of the application filed for recalling of order dated 28.02.2012, being that the Power of Attorney authorized the counsel to withdraw the applications in the case at hand. 8. Admittedly, in the case at hand, the suit was dismissed on default on 09.07.2010. A perusal of the application filed under Order 23 Rule 1 makes it also evident that the lawyer appearing for the petitioners/plaintiffs before the trial Court had not been authorized to withdraw the application under Order 23 Rule 1 CPC and the application under Order 9 Rule 9 CPC. 9. An application for restoration under Order IX Rule 9 CPC was filed on 20.07.2010. The same was pending consideration before the learned trial Court. The application filed under Order 23 Rule 1 CPC dated 16.01.2012, was an application filed for withdrawal of the suit with permission to file afresh. The same is evident from the headnote of the application itself. 5 2025:HHC:20725 The said application could have only been considered, once the application filed under Order IX Rule 9 CPC had been allowed and the suit had been restored to its original number. 10. In view of the aforesaid position, impugned orders dated 16.05.2017 and 28.02.2012, are quashed and set aside. Parties are relegated to the learned trial Court. The trial Court shall consider the pending application under Order IX Rule 9 CPC. It is only after a decision has been taken on the application under Order IX Rule 9 CPC, that the trial Court be required to take a view on the application filed under Order 23 Rule 1 CPC. In the aforesaid backdrop, parties are directed to appear before the trial Court on 16.07.2025. 11. Accordingly, present petition is disposed of, so also the pending application(s), if any. (Bipin Chander Negi) Judge 01st July, 2025 (Gaurav Rawat)