The court emphasized that restoration of a suit requires due consideration of delay under Section 5 of the Limitation Act, especially when minors are involved, highlighting procedural fairness.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has assailed order dated 23.04.2019, passed by the Court of learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. (Annexure P-3), in terms whereof, an application filed under Order 9, Rule 4 read with Rule 9 of the Civil Procedure Code was allowed by the learned Trial Court.

2. Brief facts necessary for the adjudication of the present petition are that a civil suit was filed by the respondents and their mother, which was dismissed for non-prosecution. The contesting respondents herein were the minor plaintiffs in the said civil suit. An application was filed for restoration of the civil suit by Ms. Parul Kapil and Master Sahil Kapil, through Ms. Parul Kapil, praying for the restoration of the suit by setting aside the order of dismissal, dated 11.06.2010. It was mentioned in the application that in the said civil suit, which was a suit for specific performance of contract, they were being represented through their mother as their next friend, however, as their interest was not protected by their mother who was careless in execution of the suit, the same was dismissed for non-prosecution on 11.06.2010. It was further mentioned in the application that now that applicant No.1 had become a major on 20.08.2013, therefore, the application was being filed at the earliest without any delay from the date of knowledge for restoration of the suit.

3. In terms of the impugned order, the application has been allowed by the learned Court below by returning the following findings:-

“13. I have heard the submissions of learned counsel for the parties and perused the entire record with painstaking care. It is neither in doubt nor in dispute that earlier, Asha Devi filed a civil suit No. 128/2005 for specific performance of contract against Rattan Chand, Ashok Kumar, Madan Lal and Raj Kumar This suit got dismissed vide order Ext.A-1. I have perused the order Ext. A-1. From the perusal of the order Ext.A-1, it is clear that this suit got dismissed for want of taking steps to bring on record the LRs of the then deceased defendant Rattan Chand. This suit got dismissed on 11.06.2010. Applicants filed this application on 20.11.2014. Thus, it is clear that this application has been filed after 4 years 5 months post the dismissal of the civil suit No. 128/2005. Applicant No. 1 has attained the age of majority on 20.08.2013. The limitation period to restore the suit dismissed in default is 30 days by virtue of article 122 of Limitation Act. The reason assigned for non-appearance before the court on dated 11.06.2010 is that applicants were minors and their legal guardian Asha Devi, did not care about their interest and abandoned the suit.

14. I have also perused the record. It is clear from the record that of-course, applicants were minor at the time of pendency of the civil suit No. 128/2005. Asha Devi, was their legal guardian. Now, Asha Devi has been made proforma respondent alongwith Rahul Kapil. Applicant No. 2 attained the age of majority during the pendency of this application. Thereafter, on the application of the applicant No. 2, his court guardian has been discharged and applicant No. 2 has been allowed to pursue with this suit on his personal capacity. However, applicants did not file any application for condonation of delay. Albeit, this application is also beyond the limitation period, even after attaining the age of majority by the applicant No. 1 and proforma respondent No. 2.

…...17. Here, in this case, the applicants were minor at the time when the suit was dismissed. There was very serious issues involved between the parties in the civil suit No. 128/2005, which requires adjudication of the court on merit. Hence, I give liberal consideration to the word "sufficient cause" for condonation of delay and incline to allow this application. However, cost of Rs.2,000/- is imposed upon the applicants for delay and careless attitude and to compensate the respondents to defend