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IN THE HIGH COURT OF JHARKHAND, RANCHI
SANJAY KUMAR DWIVEDI, J.
Rabia Bibi @ Rabia Khatoon, wife of Md. Qutibuddin Ansari and Anr. – Petitioners
Versus
Julekha Bibi, widow of late Qutubuddin Ansari and Anr. – Respondents
C.M.P. No. 713 of 2023
Decided On : 25-02-2025
(A) Constitution of India - Article 227 - Code of Civil Procedure, 1908 - Order IX Rule 4 and Section 151 - Limitation Act, 1963 - Petition for restoration of Original Suit dismissed for non-prosecution due to non-payment of court-fee - Petitioners' medical issues and the Covid-19 pandemic were significant factors for delay - The court held that since the suit was not admitted and notices were not issued, the dismissal was erroneous. (Paras 3, 4, 5, 7)
(B) Delay Condonation - The court emphasized that procedural laws should facilitate justice and not serve as punitive measures, citing the Supreme Court's principle that laws of procedure should be construed to render justice wherever reasonably possible. (Paras 5, 8)
Facts of the case:
The petitioners, daughters of the executor, could not appear due to medical issues and the pandemic, leading to the dismissal of the suit for non-prosecution. They filed for restoration, which was initially rejected.
Findings of Court:
The court found sufficient grounds for condonation of delay and restored the Original Suit No.07 of 2021 to its original file.
Issues: Whether the dismissal for non-prosecution was justified given the petitioners' circumstances and the relevance of the Covid-19 pandemic.
Ratio Decidendi: The court ruled that the procedural law should facilitate justice, and since the suit had not been admitted, the dismissal was improper.
Result: The petition for restoration was allowed, and the Original Suit was restored.
JUDGMENT :
SANJAY KUMAR DWIVEDI, J.
Heard the learned counsel for the petitioners as well as the learned counsel for the opposite parties.
2. This petition has been filed under Article 227 of the Constitution of India whereby prayer has been made for setting aside the order dated 05.04.2023 passed in Civil Misc. Appeal No.01 of 2023 by learned Principal District Judge, Dhanbad whereby a petition filed for restoration under Order IX Rule 4 read with Section 151 of the CPC along with an application under Section 5 of the Limitation Act, 1963 has been rejected by the learned court. The further prayer is made for setting aside the order dated 13.09.2022 whereby the Original Suit No.07 of 2021 has been dismissed for non-prosecution and the prayer is also made for restoration of Probate Suit No.07 of 2021 to its original file.
3. Mr. Shashank Shekhar, the learned counsel appearing on behalf of the petitioners submits that Original Suit No.07 of 2021 was at the initial stage and even notices have not been issued in that case. He submits that the said suit was dismissed for default as the court-fee was not filed within granted time. He submits that thereafter a petition for restoration of the said suit under Order IX Rule 4 read with Section 151 of the CPC along with an application under Section 5 of the Limitation Act, 1963 has been filed which has been rejected by the learned Principal District Judge, Dhanbad by order dated 16.01.2023 on the ground that the limitation has not been explained properly. He submits that this matter was earlier posted before the co-ordinate Bench of this Court and he relied in the case of Anwari Begum and Others v. The State of Bihar (Now Jharkhand) and Others reported in 2011 (1) JLJR 304 wherein it was held that if the suit is not admitted and it was dismissed for default at the initial stage, there is no need of issuing notice upon the other side. He submits that by order dated 03.08.2023 the co-ordinate Bench of this Court has referred this aspect of the matter before the Division Bench which was placed before the Division Bench and the Division Bench by order dated 27.11.2024 answered the Reference saying that if the suit is not admitted and initially it has been dismissed for non-prosecution, there is no need of issuing notice upon the other side. He submits that in view of that, after the answer by the Division Bench, this matter has been listed before this Bench. He further submits that the learned court has not considered about the Covid-19 pandemic and the suit was dismissed for default by order dated 13.9.2022. He further submits that the petitioners are the daughters of the executor namely Qutubuddin Ansari and they could not appear on the fixed date for submitting the court-fee as they are married daughters. He submits that the petitioner no.1 was admitted in National Highways Nursing Home from 03.05.2022 to 20.07.2022 and as such she could not appear on 06.05.2022, 09.06.2022 and on 08.07.2022. The petitioner was again admitted in Nichitpur Hospital and Research Centre Pvt. Ltd. From 31.07.2022 to 04.08.2022 and in view of that the petitioner could not appear before the learned court on 23.08.2022 and on 13.09.2022 and the suit was dismissed for default. He then submits that along with the petition filed before the learned court, the medical certificate was also annexed. However, the learned court has been pleased to not accept the same.
4. It is an admitted position that the said suit was dismissed for default on the ground that within the time granted, the court-fee was not deposited and thereafter this petition under Order IX Rule 4 read with Section 151 of the CPC along with an application under Section 5 of the Limitation Act, 1963 has been filed. The said petition is annexed as Annexure-2 in the C.M.P. The said petition was also accompanied with the condonation petition of delay. The certificate of National Highways Nursing Home and Nichitpur Hospital and Research Centre Pvt. Ltd were also
Procedural laws should facilitate justice, and dismissal for non-prosecution is improper if the suit has not been admitted and notices have not been issued.
Courts emphasize the need for specific reasons and orders in restoration proceedings under the Limitation Act.
A party should not be denied relief due to procedural missteps, especially when genuine misunderstanding exists concerning court dates and the case is at an early stage.
The party seeking relief should not be denied their rights without adjudication in accordance with the law.
The main legal point established in the judgment is that a party cannot be deprived of justice on technical grounds, and the court can exercise discretion to condone delay in the absence of a formal ....
The court established that a formal application for condonation of delay is not mandatory under Section 5 of the Limitation Act, allowing for discretion in restoring applications.
Courts should not dismiss petitions for minor procedural irregularities when no prejudice is shown, emphasizing the importance of pursuing substantial justice.
Inherent powers under Section 151 CPC allow restoration of suits for substantial justice without a formal application for condonation of delay.
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