Restoration of partition suits dismissed for default emphasizes that procedural delays should not obstruct substantial justice and meritorious claims.

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 2^nd, 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 1^st 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 alive for more than 7 years, he died on 9.12.2010 after the dismissal of the title partition suit but she did not took any steps for restoration of partition suit. After 4 years of her father’s death she became clever and due to her greedy nature had filed this Misc. case on wrong and false pleas that she had no knowledge during 11 years about the order of the dismissal.

3. The aforesaid Misc. case No. 03 of 2014, filed by the respondent was allowed by the impugned order which is under challenge in this Civil Miscellaneous.

4. It is submitted on behalf of respondent – plaintiff that petitioner is the daughter of Late Krishna Kishore Sinha (Plaintiff No. 1 of Title Partition Suit No. 122 of 1997) and her case is that plaintiff No. 1 - (Krishna Kishore Sinha) of Title Partition Suit No. 122 of 1997 died on 09.12.2010 at Bhubaneshwar leaving behind a widow and a daughter ( plaintiff No. 2 of Title Partition Suit No. 122 of 1997) whereas the defendant No. 1 of Title Partition Suit No. 122 of 1997 died leaving behind two sons and one daughter. The further case of the petitioner is that although the wife of Krishna Kishore Sinha was alive at the time of filing of said Title Partition Suit No. 122 of 1997 but the plaintiff No. 1 Krishna Kishore Sinha is not incorporated his wife as party to the suit rather he included the petitioner (daughter) in the same suit. Now, the further case of petitioner is that the father of Krishna Kishore Sinha was looking entire affairs of home. So, neither the petitioner nor her mother were aware about exact property of her maternal family and share therein. As per the case, she came to know about the pendency of Title Partition Suit No. 122 of 1997 in the month of September and obtained the copies of order sheet and plaint of the said suit in the last week of December 2013 at her residence at Gurgaon and came to know that the said suit was dismissed for default on dated 31.07.2003 and entire property of her family was under dispute and subject matter of Title Partition Suit No. 122 of 1997, so the entire share of the petitioner and her mother was involved in the said Title Partition Suit No. 122 of 1997 and this petition has been filed from the date of knowledge of its dismissal after receiving the entire order sheet and plaint.

5. After hearing both parties, it appears that Krishna Kishore Sinha and his daughter, Seema Prasad (the present respondent), were the plaintiffs in Title Partition Suit No. 122 of 1997, which was dismissed for default on 31