Back
2018 Supreme(Jhk) 1316
IN THE HIGH COURT OF JHARKHAND AT RANCHI
CHANDRASHEKHAR, J.
Dinesh Kumar Sahu & Ors. - Petitioners
Versus.
Urmila Devi, wife of Dinanath Prasad & Ors. - Respondents
W.P.(C) No. 3851 of 2008
Decided On : 27-11-2018
For the Petitioners:Mr. Indrajit Sinha, Mr. Arpan Mishra, Advocate
For the Respondents:Mr. R.S. Mazumdar, Sr. Advocate, Mr. Pratik Sen, Advocate
Headnote:
Limitation Act – Sections 5, 14 – Civil Procedure Code, 1908 – Order-XXII Rule 3(2), Order IX Rule 9 r/w Section 151 – Application for restoration of the suit – Petitioners are aggrieved of orders – By order application for restoration of the suit was dismissed and by the order, the application for setting-aside the abatement was dismissed – Held, Whether the petitioners have shown sufficient cause for not preferring the application for setting-aside the abatement under Order-XXII Rule (3) & (9) CPC r/w Section 151 CPC and whether they would have the benefits of Section 14 of the Limitation Act, should have been dealt with by the appellate court. Chronology of the events and the proceeding which has taken place after dismissal of Title Suit No. 50 of 1993, more particularly, dismissal of Misc. Case prima facie, disclose that the petitioners should be granted benefits of Section 5 and Section 14 of the Limitation Act. – The decisions in the cases cited by the learned Senior counsel for the respondents have been rendered in the context of peculiar facts of the case. – In “Balwant Singh”, the Supreme Court has observed that the bona-fide reasons for condonation of delay should be considered by the court – Petitioners have made false and contradictory statements, all that is required to be recorded is that the facts disputed by the parties to the suit cannot be decided on the basis of affidavits filed by the parties and, moreover, the applications filed by the petitioners have not been dismissed on such a ground. Subject matter of Title Suit is landed property which is comprised under sale-deed and, therefore, it cannot be denied that the petitioners have valuable interest involved in the suit. – On technicalities a party to the suit normally should not have a walk-over rather, the approach of the court should be to permit the parties to contest the suit on merits by leading evidence, both oral as well as documentary. – However, the courts below, adopting a hyper-technical approach and, that too, on an erroneous legal premise, have dismissed the applications filed by the petitioners. – In view of the aforesaid errors committed by the courts below, the impugned orders are set-aside. – Keeping in view the long pendency of the suit; the suit was instituted in the year 1993, and the aforesaid facts the applications filed by the petitioners are allowed and the trial Judge is directed to conclude the trial of Title Suit keeping in mind the mandate under Order XVII Rule 1 (2) CPC. – Writ Petition Allowed
The petitioners are aggrieved of orders dated 24.01.2005, 08.12.2006, 05.09.2007 and 12.06.2008. By order dated 24.01.2005, the application for restoration of the suit was dismissed and by the order dated 05.09.2007, the application for setting-aside the abatement was dismissed. The other two orders are the appellate orders.
2. Briefly stated, Title Suit No.50 of 1993 was instituted by the petitioners’ father namely, Srikant Sao @ Srilal Sahu for a decree for declaration of his title over the landed property described in schedule-B of the plaint and for confirmation of his possession over the suit land on cancellation of the sale-deed, if any, executed in favour of the defendants. The plaintiff has pleaded that he has purchased the suit land from the legal heirs of the recorded tenant namely, Hiru Gope through a registered sale-deed dated 06.10.1959 and he came in peaceful possession over the suit land. However, during the revisional survey operation the defendant nos.1 to 4 claiming that they are purchasers of the suit land through sale-deed executed by Kali Charan Gope started interfering with the plaintiff’s possession over the suit land. The defendant no.4 namely, Rabi Gope filed his written-statement raising various objections to the maintainability of the suit. The case pleaded by the plaintiff that Kashi Gope and Malua became exclusive owners of the land belonging to the recorded tenant namely, Hiru Gope has been dispute by the defendant no.4, pleading that after death of Hiru Gope the entire land recorded in C.S.Khata No.38 was put on auction due to non-payment of the rent to the ex-landlord and it was purchased by Mohan Gope in auction-sale on 15.02.1930. One of the daughters of Hiru Gope filed a petition for cancellation of the auction sale, however, the said application was rejected vide order dated 12.03.1930. The said Mohan Gope thereafter sold the property so purchased by him in auction-sale to Jairam Gope through sale-deed dated 31.10.1932. Baglu Gope, who was grand-father of the defendant no.4; Kali Charan Gope is the father of defendant no.4, was full-blood brother of Jairam Gope and after his death Kali Charan Gope inherited the suit property. The defendant no.4 has further pleaded that during his life time his father sold the land recorded under C.S. Plot No.241 in C.S.Khata No.38 to the defendant nos.2 and 3 through two registered sale-deeds and it has been mutated in their name. Further case set up by the defendants is that during the revisional survey the plaintiff raised objection under the Chhotanagpur Tenancy Act, 1908, however, his objection was rejected by the survey authority.
3. During pendency of the suit, father of the petitioners died on 12.04.2000, however, his counsel filed attendance till 27.12.2002. An application for substitution of original plaintiff was filed, but without mentioning the date of death of the original plaintiff and by an order dated 07.04.2003, Title Suit No.50 of 1993 was dismissed for non-prosecution. However, before that an application for substitution of the legal heirs of the plaintiff, who had in the meantime died on 12.04.2000, was filed on 23.01.2003. The defendant no.4 filed his objection to the application for substitution raising two fold objections; (i) no death certificate was produced and (ii) the suit has automatically abated under Order-XXII Rule 3(2) CPC. Thereafter, the petitioners filed an application under Order IX Rule 9 r/w Section 151 CPC for restoration of the suit and this application was registered as Misc. Case No.7 of 2003. The defendants raised an objection to the maintainability of Misc. Case No.7 of 2003 on the ground that after the death of the plaintiff the suit has automatically abated and, therefore, it cannot be restored. In the proceeding of the miscellaneous case, Pradeep Kumar Sahu was examined as PW-1 and he has produced photocopy of the medical certificates. Misc. Case no.7 of 2003 was dismissed on 24.01.2005 on the ground th
