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V. G. BISHT
Wamanrao Vishwanath Kose (dead) – Appellant
Versus
Jagdish S/o. Vishwanath Kose – Respondent
JUDGMENT :
1. Heard.
2. Admit. Heard finally by consent of learned counsel for the parties.
3. The present appeal takes an exception to the order dated 16.04.2019 passed below Exh. 45 in Misc. Civil Application No. 120 of 2011 by the learned District Judge-1, Chandrapur.
4. According to the appellants, the plaintiff/ respondent No.1 had filed suit bearing Special Civil Suit No.118 of 2006 before learned 2nd Jt. Civil Judge Senior Division, Chandrapur for partition and separate possession of the suit properties. The suit was decreed. The original defendant No.1 (since deceased) challenged the judgment and decree of the learned Trial Judge before the learned District Judge-1, Chandrapur and also moved an application to condone the delay of 5 months in preferring the first appeal. The said application came to be registered as Misc. Civil Application No. 55 of 2008. However, the said application came to be rejected for want of prosecution. The deceased defendant No.1 then moved the Misc. Civil Application No. 120 of 2011 to restore the Misc. Civil Application No. 55 of 2008. However, since the original defendant No.1 died during the pendency of Misc Civil Application No. 120 of 2011 the le
The court emphasized the need for the District Judge to consider the pending applications and the main controversy involved in reaching a decision.
The court invoked the inherent powers under Section 151 CPC to allow the restoration application and held that the application for restoration was maintainable under Order IX Rule 4 CPC.
Restoration of partition suits dismissed for default emphasizes that procedural delays should not obstruct substantial justice and meritorious claims.
No specific order for abatement of proceedings under one or other provisions of Order 22 is envisaged and the abatement takes place on its own force by passage of time.
The court emphasized that technicalities should not be allowed to annul the adjudication made by the trial court and the appellate authorities, and that substantial justice should be done to the liti....
The main legal point established in the judgment is the importance of fair opportunity to contest the suit and the right to property involved in the suit, along with the simultaneous resort to remedi....
Point of Law – Restoration application with delay was also rightly rejected by the Court-below after having been pending for 5 years. That no sufficient cause was explained by the petitioners for con....
The court upheld the trial court's discretion in rejecting the application to restore a suit dismissed for default, finding no sufficient cause for the appellants' absence during proceedings.
A preliminary decree in a partition suit prevents abatement, and counsel's failure to report deaths does not impede the legal process for bringing in representatives, as established by Order XXII Rul....
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