Dismissal of a suit for non-prosecution is not a decision on merit and cannot operate as res judicata.

JUDGMENT :

CHANDER BHUSAN BAROWALIA, J.

1. The present petition is maintained by the petitioners under Article 227 of the Constitution of India, for quashing and setting the impugned order dated 08.06.2015, passed by learned Civil Judge (Junior Division), Court No.II, Hamirpur, District Hamirpur, H.P, in Civil Suit No.34 of 2011.

2. Brief facts giving rise to the present petition are that the petitioners/plaintiffs (hereinafter referred to as =plaintiffs') filed a suit for declaration against the respondents/defendants (hereinafter referred to as =defendants') to the effect that plaintiffs are in possession as tenants situated over the land bearing Khata No.196 min, Khatauni No.342 min, Khasra No.1026, measuring area 42/84 sq. meters, in Mohal Gandhi Nagar, Mauza Bazuri Tehsil and District Hamirpur, H.P and the entry shown in the column of possession is wrong, illegal and contrary to the factual position existing on the spot alongwith the suit for permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the shop and also not to dispossess the plaintiff forcibly by demolition of the same. In alternative, suit for mandatory injunction directing the defendants to restore the possession of the plaintiff in the said shop in case, they succeed in forcibly dispossessing the plaintiffs from the said shop during the pendency of suit. It is averred that the defendants have failed to file written statement within the statutory period of ninety days from the date of receiving the notice, therefore, they had filed an application under Section 148 CPC, for extension of time and ultimately the defendants had filed written statement alongwith counter claim on 6.9.2011. Thereafter, both the parties have filed replication to the written statement in the suit and counter claim, wherein it has been alleged that the suit was instituted by predecessor-in-interest of the petitioners, namely, Kishore Chand Verma and he had obtained all the relevant record qua the dispute from the concerned authorities and had kept the same in his custody during his lifetime. During the pendency of suit, Kishore Chand Verma (plaintiff) died on 18.12.2012 and consequent thereto the plaintiffs have suffered irreparable loss and hardships, as they have to start the whole case afresh by collecting the relevant record maintained by the deceased as well as from the relevant agencies. After the demise of Kishore Chand Verma, predecessor-in-interest of the plaintiff, application under Order 23 Rule 3 CPC, for placing on record the legal heirs of the deceased was moved by the plaintiffs for impleading the present plaintiffs as legal heirs of deceased Kishore Chand Verma, the same was allowed by the learned Court below. It is further averred that on the basis of plaint, written statement alongwith counter claim, replications of the respective parties, issues were famed and the case was fixed for plaintiffs evidence. It is further averred that after the sudden demise of the father of the plaintiffs, they went under depression and even one of the plaintiffs got himself treated at Regional Hospital, Hamirpur, as well IGMC Hospital, Shimla. After the death of predecessor-in-interest of the plaintiffs the present plaintiff, namely, Bhuvnesh being a responsible and elder male member in the family was bestowed to shoulder with family responsibilities and responsibilities of dealing with multiplicity and litigation pending before the learned Courts at Hamirpur. Though admittedly earlier all the litigations were being managed by the deceased Kishore Chand Verma and after his death the same was fallen as havoc on the entire family and consequent thereto the plaintiff, namely, Bhuvnesh had suffered with intense depression for years all together and undergone treatment initially at Regional Hospital, Hamirpur and subsequently at IGMC, Shimla. When the matter was taken up on 8.6.2015 before the learned Court below, learned co