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SUPREME COURT OF INDIA
PAMIDIGHANTAM SRI NARASIMHA, ARAVIND KUMAR, JJ.
Omdeo Baliram Musale & Ors. – Appellants
Versus
Prakash Ramchandra Mamidwar & Ors. - Respondents
Petition For Special Leave To Appeal (C) no.11258 of 2015
Decided on : 24-01-2024
Civil Procedure Code, 1908 – Order IX Rules 9 and 14 – Restoration of suit dismissed for default – Suit that was filed in 1982 never took off as even summons were not issued – It might not be surprising for Lawyers, Judges and those who are acquainted with civil court proceedings – Real danger is when we accept this position and continue with it as part of a systematic problem – Until and unless we believe that this situation is unacceptable and act accordingly, power, authority and jurisdiction of Courts to address simple reliefs of citizens will be consumed and destroyed by passage of time – This is not acceptable at all – There must be a solution, idea and resolve to rectify this situation and ensure that simple, quick and easy remedies are available to correct an illegality for a rightful restitution. (Paras 13 and 14)
Facts of the case:
A simple prayer was made by petitioners in a suit for declaration that property belonging to joint family, but their father wrongly sold it to third parties through a sale deed in the year 1980. suit came to be dismissed for default for not paying the process fee for service of notice on the LRs. of defendant no.2. Petitioners therefore filed application for restoration in 1993. This application for restoration was decided after seven years and Trial Court on 04.02.2000 dismissed application on the ground that it was filed under Order IX Rule 9 of the CPC whereas it ought to have been filed under Order IX Rule 4 of the CPC as the suit was originally dismissed under Order IX, Rule 2 of the CPC. Petitioner filed an appeal against this order.
Findings of Court:
Suit that was filed in the year 1982 relates to an alleged unauthorized sale by father more than four decades back. The suit has virtually become infructuous for more than one reason.
Result : Special Leave Petition dismissed.
ORDER :
1. This Special Leave Petition is against the decision of the High Court1[In CA No. 1109/2013 in MCA No. 12275/2013 in CRA No. 284/2003 dated 05.11.2014.] in dismissing an application for restoration of a Civil Revision Application and the accompanying application for condonation of delay in sheer exasperation. The facts are as follows:
2. A simple prayer was made by the petitioners in a suit for declaration that the property belonging to the joint family, but their father wrongly sold it to third parties through a sale deed in the year 1980.
3. The suit came to be dismissed for default for not paying the process fee for service of notice on the LRs. of defendant no.2. The petitioners therefore filed an application for restoration in 1993.
4. This application for restoration was decided after seven years and the Trial Court on 04.02.2000 dismissed the application on the ground that it was filed under Order IX Rule 9 of the CPC whereas it ought to have been filed under Order IX Rule 4 of the CPC as the suit was originally dismissed under Order IX, Rule 2 of the CPC. The petitioner filed an appeal against this order.
5. After three years, the appeal came to be dismissed on 25.06.2003. The petitioner then filed a revision petition in which the High Court issued notice.
6. While the revision was pending before the High Court, the petitioner was unable to serve respondent no.8 for a long time due to some issue about change in the names. Having waited for long, High Court passed a peremptory order on 01.12.2005 that if the objections were not removed within a period of two weeks, the revision petition would stand dismissed without reference to the Court.
7. On 12.12.2005, the petitioner’s advocate is said to have prepared an application for change of name of respondent no.8 and a copy was also served on the respondent’s advocate but in the meanwhile the peremptory order came into operation and the revision petition came to be dismissed on 15.12.2005.
8. Despite the dismissal of the revision petition, the petitioner filed the application for change in name of respondent no.8 on 21.12.2005.
9. The sad story continues. In 2011, i.e. after six years, an M.A. for restoration was filed by the petitioner through his son. The son’s affidavit was taken on record. However, the High Court by order dated 03.07.2013 dismissed the M.A. only on the ground that it was not moved by the original party to the revision petition.
10. In view of the above referred order, another application was filed in 2013 by the petitioner himself for restoration of the revision petition and condonation of delay. The High Court by the order dated 05.11.2014, impugned herein, dismissed the application for restoration.
11. The story does not stop here. The petitioner then filed a Special Leave Petition against the above-said impugned order and notice was issued by this Court on 06.04.2015.
12. From 2015, the matter has been pending before this Court. Proceedings in the case indicate that the SLP was listed several times between 2015 and 2024 but could not be heard as notice on some respondents was not complete.
13. The above referred facts indicate that the suit that was filed in 1982 never took off as even summons were not issued. It might not be surprising for lawyers, judges and those who are acquainted with civil court proceedings. The real danger is when we accept this position and continue with it as part of a systematic problem. Until and unless we believe that this situation is unacceptable and act accordingly, the power, authority and jurisdiction of Courts to address simple reliefs of citizens will be consumed and destroyed by passage of time. This is not acceptable at all.
14. There must be a solution, idea and resolve to rectify this situation and ensure that simple, quick and easy remedies are available to correct an illegality for a rightful restitution. We have referred to all this only to take note of what has happened and take steps to rectify it in the time
AI
There must be a solution, idea and resolve to ensure that simple, quick and easy remedies are available to correct an illegality for a rightful restitution.
The court reaffirmed that delays in property rights cases can be condoned when substantial interests are at stake, particularly when due to attorney oversight.
The court reinforced that an excessive delay in seeking restoration of a suit cannot be condoned based on vague explanations, as it undermines the principles of the law of limitation.
Period of limitation – Litigant should not be permitted to throw entire blame on head of Advocate and thereby disown him at any time and seek relief.
Interest of justice and fair adjudication should be considered in allowing the condonation of delay and restoration of a suit.
Findings of the court - Petitioners in their application for condonation of delay did not change their conduct and preferred multiple adjournment applications with a clear intention of not proceeding....
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