Order On Board

08/10/2024

1. This Miscellaneous Appeal has been filed against the order dated

28.06.2023 passed by District Judge, Rajnandgaon in Civil MJC No.7/2022 whereby, application preferred by the appellant under Order 9 Rule 9 CPC for restoration of suit was dismissed.

2. Facts of the case in brief are that, in the year 2017, appellant instituted a suit for declaration and for specific performance of contract. On the date of hearing i.e. 04.12.2021, the case was fixed for plaintiff’s evidence. It has been averred that when the appellant’s lawyer was busy in preparing the affidavit in the form of Order 18 Rule 4 CPC as the same was notarized on the same day and a copy of which has also been filed along with this appeal, therefore for such reasons, he could not make his appearance at the time of hearing before the court and the case was dismissed for non prosecution. When the application in question was filed on 07.1.2022 for restoration, the same was also dismissed by the order impugned.

3. Learned counsel for the appellant submits that in a catena of decisions of the Hon’ble Supreme Court, the law is well settled that the restoration of suit dismissed on default should not ordinary be denied unless the applicant is found guilty of continuous negligence or willful default. The litigant should not be made to suffer for the negligence of his counsel. He further submits that appellant has filed civil suit way back in the year 2017 and when the case reached at the evidence stage, the lawyer was busy in notarizing the statement to be filed before the trial Court in the form of Order 18 Rule 4 CPC and the same was also notarized on the same day. Though sufficient cause has been shown at the time of hearing, however, the trial Court has adopted a hyper technical approach and dismissed the application and he prays to allow the appeal.

4. On the other hand, learned counsel for the respondent would support the order impugned.

5. I have heard learned counsel for the appellant and perused the documents annexed with the appeal.

6. It is now well settled that a liberal approach should be adopted in dealing with an application for restoration of a suit which is dismissed for default. Though there is no straitjacket formula as to what is sufficient cause so as to grant relief to a party under Order 9 Rule 9 CPC and the matter has been left to the wisdom, good sense and discretion of courts. The expression “sufficient cause”, therefore, be considered with pragmatism in justice oriented process approach rather than technical rigidity. Whether sufficient cause is made out or not would be dependent on the facts of each case and this expression should be construed liberally to advance substantial justice.

7. It is also well settled that under Article 122 of the Limitation Act, the limitation has been prescribed as 30 days for filing of an application for restoration of the suit from the date of dismissal and in case, where no application has been filed under Section 5 of the Limitation Act in writing, the appellant can claim condonation of delay. There is no bar for the court to exercise its discretion to condone delay, in absence of formal application in view of the ratio laid down on the matter of Sesh Nath Singh And Another v. Baidyabati Sheoraphuli Co-operative Bank Limited And Another{(2021) 7 SCC 313}.

8. Reverting back to the facts of the present case, the civil suit was filed way back in the year 2017 and the case reached to the stage of evidence. Admittedly on the same day, a statement in the form of Order 18 Rule 4 CPC has been notarized through the oath commissioner, therefore, the ground that at the time of hearing, the appellant’s counsel was busy in the preparation of Order 18 Rule 4 statement which was to be filed before the trial court and for such reason, he could not make appearance, the trial Court has adopted a hyper technical approach as the said ground was not mentioned in the statement of the appellant/plaintiff. Appellant/pla