Notice must be issued to opposing parties in restoration proceedings to uphold natural justice, even if they did not appear in previous hearings.

ORDER :

1. Heard Mr. Shashank Shekhar, learned counsel for the petitioners.

2. This case has been referred to the Division Bench vide Order dated, 03.08.2023 and the same reads as follows:

“Learned counsel for the petitioner submits that since the opposite parties have not appeared in the probate proceeding nor in the restoration application, it is not necessary to issue notice to the opposite parties. In support of his contention, he refers the order passed by a Co-ordinate Bench of this Court reported in 2011 (1) JLJR 304 [Anwari Begum and Ors. Vs. The State of Bihar (Now Jharkhand) and Ors.]

On dismissal of an application, a valuable right accrues to the opposite party. If that order is recalled or set aside, the right which has already accrued to the opposite party gets extinguished. The right, which has accrued to a party even in his absence, cannot be taken away without hearing him. Same will violate the principle of natural justice.

Allowing this application at this state, will mean taking away the right which has already accrued to the defendants, thus I feel that the same cannot be passed without noticing the opposite parties.

Thus, I differ with the order, referred to above, by the learned counsel for the petitioners, reported in 2011 (1) JLJR 304 .

Since there is a difference in opinion, let the matter be placed before the Division Bench after obtaining permission from Hon’ble the Chief Justice.

3. The petitioners in this application have prayed for quashing of the order dated 05.04.2023 passed in Civil Misc. Appeal No. 01 of 2023 by the learned Principal District Judge, Dhanbad, whereby and whereunder, the restoration application preferred by the petitioners under Order IX Rule 4 of the CPC read with Section 151 CPC along with an application under Section 5 of the Limitation Act, 1963 has been rejected. The petitioners have also prayed for quashing of the order dated 13.09.2022 passed in Original Suit No. 07 of 2021 by the learned Principal District Judge, Dhanbad, by which, the suit has been dismissed for non-prosecution. The petitioners by way of a consequential order have prayed for restoration of Probate Suit No. 07 of 2021 to its original file.

4. The question which falls for consideration in this case in terms of the order dated 03.08.2023 is as to whether notice is required to be issued to the opposite parties as according to the learned counsel for the petitioners no notice need be issued as in the facts and circumstances of the proceedings in Probate Case No. 07 of 2021 and Civil Misc. Appeal No. 01 of 2023 no valuable right has accrued to the opposite parties. Reference has been made before the learned Single Judge to the case of Anwari Begum & Ors. vs. The State of Bihar (Now Jharkhand) and Ors. 2011 (1) JLJR 304 , the relevant of which reads as follows:

“2. According to law, only such of the respondents are entitled to notice of restoration who were present on the date when the case was dismissed for default.”

5. Mr. Shashank Shekhar, learned counsel appearing for the petitioners has referred to the case of V. Bhagat vs. Usha Bhagat , AIR 1987 Del 74 in which it has been held as follows:

“6. When a plaint is presented, the Suit is thereby instituted under Order VI Rules 1 of the Code, and the Suit must forthwith be entered in the Register of the Civil Suits in accordance with Order IV Rule 2. It is made obligatory as per the High Court Rules and Orders that when a plaint is presented, the Court shall fix a short preliminary date in order to permit the examination of the plaint. On this preliminary date, the plaintiff is expected to appear to receive notice of