Court must provide notice to all parties before restoring a dismissed lawsuit, emphasizing the importance of due process and fair hearing.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard Mr. A.K. Sahani, the learned counsel appearing on behalf of the petitioners as well as Mr. Amar Kumar Sinha, the learned counsel appearing on behalf of the respondent/Opposite parties.

2. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 20.06.2022 passed by learned Civil Judge (Sr. Division)-III, Palamau at Daltonganj in Misc. Case No.05 of 2022 whereby the petitioner filed under Order IX Rule 3 CPC read with Order XVII Rule 2 CPC for restoration of Title Suit No.79 of 2008 has been allowed.

3. Mr. A.K. Sahani, the learned counsel appearing on behalf of the petitioners submits that Title Suit No.79 of 2008 was instituted for declaration of right, title and interest in which the notices have been issued upon the defendants nos.1 and 3 to 16 and they have appeared and filed their written statement and seven witnesses have been examined as well as the issue has already been framed. On 05.04.2011, the evidence of the plaintiff/O.P. first set was closed. He submits that by order dated 11.04.2022 the said suit was dismissed for non-prosecution under the provisions of Order IX Rule 3 read with Order XXVII Rule 3 of the CPC. In the meantime, some of the plaintiffs have also died. He submits that on 24.05.2022 the respondent first set has filed application under Order IX Rule 4 read with Section 151 of the CPC before the learned court of Civil Judge, Senior Division-III, Palamau at Daltonganj for restoration of Title Suit No.79 of 2008 and it was registered as Miscellaneous Case No.5 of 2022. He submits that the same was restored by the learned court by order dated 20.06.2022 and the said Title Suit No.79 of 2008 was restored fixing the next date of hearing on 20.07.2022. He submits that the said order has been passed without issuing notice upon the petitioners who were the defendants in the suit and that was also the delayed petition. He submits, in view of that, the learned court has wrongly passed the order.

4. Mr. Amar Kumar Sinha, the learned counsel appearing on behalf of the respondent/Opposite parties, submits that the learned court has rightly applied the rules and has restored the said suit.

5. Admittedly, in the suit, the suit was proceeded and first set plaintiffs’ witnesses have already been examined and subsequently it was dismissed for default by the order dated 11.04.2022 and a petition has been filed by the plaintiffs/respondents and the same was restored by the order dated20.06.2022.

6. Looking to the impugned order, the Court finds that in absence of notices upon the petitioners/defendants the said order has been passed without hearing the petitioners.

7. In the aforesaid background, if such a situation is there, when the suit has already been proceeded and witnesses of first set plaintiffs have already been over and subsequently it has been dismissed and certainly the notice was required to be issued on the petitioners/defendants which was not done by the learned court and as such, order dated 20.06.2022 passed by learned Civil Judge (Sr. Division)-III, Palamau at Daltonganj in Misc. Case No.05 of 2022 is, hereby, set-aside.

8. The petition filed under Order IX Rule 4 of the CPC is restored to the file of the learned court and the same is allowed to be decided afresh after providing opportunity to both the sides.

9. The petitioner/defendants and the respondent/plaintiffs will remain present before the learned court on 01.05.2025.

10. With the above observation and direction, the instant petition stands disposed of, accordingly.

11. Pending petition, if any, also stands disposed of, accordingly.