Notice is required in restoration proceedings when the defendant has previously appeared in the suit, ensuring fair opportunity to all parties.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard Mr. Anand Kumar Pandey, learned counsel appearing for the petitioner and Mr. Baban Prasad, learned counsel appearing for opposite party nos. 1 and 2.

2. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 08.07.2024 passed by the learned Civil Judge (Sr. Division)-III, Palamau in Civil Misc. Case No.10 of 2024, whereby, the restoration petition dated 20.02.2024 filed by the plaintiffs/opposite parties under Order IX Rule 4 read with Section 151 of the CPC for restoration of Original Suit No.68 of 2017 has been allowed without providing any opportunity to the petitioner.

3. Mr. Anand Kumar Pandey, learned counsel appearing for the petitioner submits that the plaintiffs/opposite parties instituted a suit being Original Suit No.68 of 2017 for declaration that three sale deeds do not contain true expression of conscious mind of Late Ayodhya Prasad and the said sale deeds were obtained by playing fraud and the same did not convey right, title, interest and possession upon the defendants, which are liable to be cancelled under Section 31 of Specific Relief Act and also for permanent injunction. He further submits that after receiving summons, the petitioner/defendant has appeared in the said suit and filed written statement and contested the suit on several grounds. He also submits that after framing issues, the suit was fixed for evidence, however, despite several adjournments the plaintiffs/opposite parties did not take any step and ultimately vide order dated 20.03.2023, the said suit was dismissed under Order IX Rule 3 read with Order XVII Rule 2 of the CPC. He then submits that on 20.02.2024, the plaintiffs/opposite parties filed a restoration petition under Order IX Rule 4 read with Section 151 of the CPC for restoration of the said suit, which was registered as Civil Misc. Case No.10 of 2024 and vide order dated 08.07.2024, the learned Court has been pleased to restore the said original suit to its original file. He submits that this exercise has been done by the learned Court without noticing the defendant and even copy of the restoration petition was not served upon him. He submits that in view of that, the learned Court has wrongly passed the said order and, as such, the impugned order may kindly be set-aside.

4. Mr. Baban Prasad, learned counsel appearing for opposite party nos. 1 and 2 submits that it is within the domain of the learned Court to satisfy to restore the said suit and no notice is required to be issued. To buttress this argument, he relied upon the judgment passed by a Coordinate Bench of this Court in the case of Anwari Begum & others v. State of Bihar (Now Jharkhand) and others, reported in 2011 (2) JCR 215 (Jhr). Relying on the above judgment, he submits that no notice is required to be issued. On the same line, he further relied upon the judgment passed by the Orissa High Court in the case of Binod Kumar Agarwala and another v. Mst. Satyabhama Debi, reported in AIR 1988 Orissa 44 as well as the judgment passed by the Division Bench of Allahabad High Court in the case of Laljit Singh and others v. Pyarelal and others, reported in AIR 1956 Allahabad 714. Relying on the above judgments, he submits that the learned Court has rightly passed the order and, as such, this petition may kindly be dismissed.

5. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record and finds that it is an admitted position that the Original Suit No.68 of 2017 was instituted by the plaintiffs/opposite parties, which was fixed for evidence after framing issues, however, opposite parties did not take any steps despite several adjournments and, as such, the said suit was dismissed vide order dated 20.03.2023. Thereafter, the restoration petition being Civil Misc. Case No.10 of 2024 was filed by the opposite parties under Order IX Rule 4 read with Section 151 of the CPC and t