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IN THE HIGH COURT OF JUDICATURE AT PATNA
S.B.PD.SINGH
Vivek Sinha and Anr Son of Late Bimal Sinha – Appellant
Versus
Seema Prasad @ Smt. Seema Dyakriti W/o Major Pushkar Prasad – Respondent
JUDGMENT :
S. B. PD. SINGH, J.
1. The present Civil Misc. has been filed for setting aside the order dated 21.08.2018 passed by the learned Sub Judge 2nd, Patna in Misc. Case No. 03 of 2014 (B) whereby the learned court below allowed the Misc. Case filed by opposite party first set under provision of Order IX Rule 9 of the C.P.C. for restoration of Title Partition Suit No. 122 of 1997 and for any other writ/command or order which may be fit in the facts and circumstances of the case.
2. It is submitted by learned counsel for the petitioner that opposite party 1st set has Case No. 03 of 2014 (B) for restoration of the Title Partition Suit No. 122 of 1997 which was dismissed for default on 31.07.2003 due to non- appearance on behalf of both the plaintiffs. In that suit plaintiff No. 1 was her father K.K. Sinha and she was named as plaintiff No. 2. This partition suit was filed against the late father of these petitioners Late Bimal Sinha. It is further submitted that the title partition suit was filed by her and her father in the year 1997 and continued upto July 2003 when neither her father nor she led any Pairvi in the said suit for last several dates. Her father thereafter was also a
Restoration of partition suits dismissed for default emphasizes that procedural delays should not obstruct substantial justice and meritorious claims.
Order passed under Rule 13 of Order 9 of CPC rejecting application for an order to set aside a decree passed ex parte, appeal would lie under Order XLIII Rule 1 (d) of CPC.
Litigants are not penalized for their Advocate's negligence; restoration of a suit can be granted based on demonstrated sufficient cause for non-appearance.
In matters of suit restoration, courts should prioritize justice and merits over default while ensuring adequate compensation for the opposing party's hardships.
The court emphasized the importance of making efforts for an amicable settlement in family partition suits and applied a liberal approach while dealing with the application for condonation of delay u....
The dismissal of an appeal due to non-prosecution of the application for condonation of delay is a decision in the appeal and confirms the decision of the Trial Court on merits.
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