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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
MR. JUSTICE MUNNURI LAXMAN, J
Shyam S/o Late Shri Mangi Lal Mandora – Appellant
Versus
Ugamraj Sand S/o Shri Kewalchand Ji Sand – Respondent
| Table of Content |
|---|
| 1. writ petition against common order (Para 1 , 2 , 3 , 4) |
| 2. contention of writ-petitioner (Para 5 , 6 , 7 , 8 , 10 , 15 , 16 , 17) |
| 3. considered rival submissions (Para 9) |
| 4. article 137 applies (Para 11 , 12 , 13 , 14) |
| 5. writ petition is dismissed (Para 18 , 19) |
Order :
1. The present writ petition has been directed against the common order dated 12.03.2024 passed by the learned Commercial Court No.2, Jodhpur in Civil Misc. Case No.32/2023 (N.C.V. No.03/2023), whereunder two applications preferred by the respondent-plaintiff under Order 9 Rule 4 read with 51 of CPC, were allowed.
3. The plaintiff filed the original suit for specific performance in the year 2008. The suit was dismissed for default on 10.07.2018 at the stage of framing of issues. The plaintiff filed the first application to restore the said suit though quoted provision under Order 9 Rule 4 read with 151 C.P.C. The application should be treated as an application filed under Order 9 Rule 9 of C.P.C. The said application was also dismissed in default. The second application is filed to restore the first application and the provision quoted was Order 9 Rule 4 of C.P.C. read with 151 of C.P.C. In fact, such a
The second application for restoration of a prior application falls under Article 137 of the Limitation Act, allowing three years for filing, not the 30 days under Article 122.
Procedural rules should not obstruct the substantive rights of parties, allowing for restoration of appeals in the interest of justice.
Applications for condonation of delay under Section 5 of the Limitation Act are typically inapplicable to proceedings under Order XXI of CPC unless exceptional circumstances dictate otherwise.
Litigants are not penalized for their Advocate's negligence; restoration of a suit can be granted based on demonstrated sufficient cause for non-appearance.
The main legal point established in the judgment is that a party cannot be deprived of justice on technical grounds, and the court can exercise discretion to condone delay in the absence of a formal ....
The court established that a formal application for condonation of delay is not mandatory under Section 5 of the Limitation Act, allowing for discretion in restoring applications.
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