The main legal point established in the judgment is the applicability of the provisions of Order XXII of the Civil Procedure Code to the proceedings relating to restoration of a suit falling under Order IX of the Code, and the sufficiency of cause shown for restoration and condonation of delay.

JUDGMENT :

1. The instant revision petition is directed against order dated 29.11.2022 passed by learned Additional District Judge (Bank Cases), Srinagar, whereby application of the plaintiff (respondent No.1 herein) for restoration of the suit has been allowed.

2. It appears that respondent No.1/plaintiff Bank had filed a suit for recovery of an amount of Rs.3,44,945.80 against the petitioners and proforma respondents before the learned trial court. It also appears that during pendency of the suit, the plaintiff bank stopped appearing in the case and the suit was dismissed for non-prosecution on 29.08.2014.

3. The plaintiff filed an application for restoration of the suit before the trial court on 29th March, 2016, on the ground that the counsel for the plaintiff bank had wrongly diarized the date of hearing in his records, as a result of which he could not appear on the date of hearing. It was also averred in the application that the counsel for the plaintiff was not correctly informed by his associate about the court proceedings, as a result of which he remained ignorant about the same. In the month of December, 2015, counsel for the plaintiff is stated to have acquired the knowledge about dismissal of the suit and after obtaining certified copy of the order of dismissal in the month of February, 2016, the application for restoration was filed. It has also been averred that the record of the case lying with the counsel for the plaintiff was damaged in the floods of September, 2014, and he had to reconstruct the same. On these grounds, the plaintiff sought condonation of delay in filing the application for restoration as well as for restoration of the suit.

4. It seems that the petitioners/defendants were served with the summons of the application, but nobody caused appearance on their behalf before the trial court. On 26.06.2019, the learned trial court, after noting the aforesaid facts, proceeded to hear ex-parte arguments of the plaintiff. On the next date i.e., on 15.07.2019, counsel for the petitioners/defendants appeared before the trial court and filed his Vakalatnama and the petitioners were permitted to file objections to the application, but the objections were not filed by them despite availing a number of opportunities. Ultimately on 29.11.2021, the learned trial court, after hearing counsel for both the parties, passed the impugned order and restored the suit to its original number after condoning the delay in filing the application for restoration subject to payment of cost of Rs.3000/-.

5. The petitioners have challenged the impugned order on the ground that respondent No.3 (defendant No.5 in the suit) had died on 19.02.1997 whereas respondent No.4 (defendant No.6 in the suit) had died on 26.08.2008 and since no steps were taken by the plaintiff to implead their legal heirs as party/defendants, as such, the suit as against them had already abated. On this ground, it is urged that the suit could not have been restored. It has been averred that respondent No.5 (defendant No.7 in the suit) had also died on 16.06.2021 during the pendency of the restoration application and his legal heirs were not brought on record. It is contended that the impugned order has been passed against dead persons whose legal heirs were not brought on record, as such, the same is nullity in the eyes of law. It has also been contended that the application for restoration of the suit was filed by the plaintiff after one year and seven months of dismissal of the suit and, as such, the same was hopelessly barred by time. There was no explanation from respondent No.1/plaintiff in its application for restoration of the suit with regard to aforesaid delay in filing the application. It is contended that this aspect of the matter has not been properly appreciated by the learned trial court while allowing the application for restoration of the suit.

6. I have heard learned counsel for the parties and perused the grounds of revision, the impugned o