NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 398 of 2019 Bhagwat Chandrakar, S/o Late Rampyare Chandrakar, Aged About 57 Years, Through The Power of Attorney Holder Luv Chandrakar, S/o Bhagwat Chandrakar, R/o Brahman Para, Kurud, Tahsil Kurud, District Dhamatari, Chhattisgarh. ---- Petitioner Versus

1. Mohanlal Chandrakar, S/o Late Vishnu Prasad Chandrakar, Aged About 62 Years

2. Smt. Lalita Chandrakar, W/o Late Kaushal Prasad Chandrakar, Aged About 45 Years

3. Ku. Dharini Chandrakar, D/o Late Kaushal Prasad Chandrakar, Aged About 25 Years

4. Ku. Bhumika Chandrakar, D/o Late Kaushal Prasad Chandrakar, Aged About 21 Years

5. Ku. Himani Chandrakar, D/o Late Kaushal Prasad Chandrakar, Aged About 21 Years

6. (Deleted) Saket Chandrakar (died) as per Hon'ble Court order dated 14-01-2022.

7. Smt. Rampyari Chandrakar, W/o Late Vishnu Chandrakar, Respondents No.1 to 7 R/o Brahmanpara, Kurud, Tahsil Kurud, District Dhamtari, Chhattisgarh.

8. State of Chhattisgarh, Through Collector, District Dhamtari, Chhattisgarh.

---- Respondents -------------------------------------------------------------------------------------

For Petitioner : Mr. Prafull N. Bharat, Sr. Advocate with Mr. Mayank Chandrakar, Advocate For respondents No.1 to 5: Mr. Ritesh Verma, Advocate & 7 For Respondent No.8 : Mr. Shakti Singh Thakur, P.L.

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(Proceedings through Video Conferencing)

Hon'ble Shri Justice Parth Prateem Sahu

Order on Board

07.02.2022

1. Petitioner has preferred this writ petition assailing impugned order dated 08.02.2019 passed by Additional District Judge, Camp Court, Kurud, District Dhamtari (C.G.) in Misc. Civil Appeal No.13 of 2017 whereby learned Additional District Judge dismissed the miscellaneous appeal.

2. Facts of the case in nutshell are that petitioner/plaintiff filed a suit for declaration of title and permanent injunction along with an application for grant of temporary injunction. Upon hearing application for grant of temporary injunction, it was dismissed by the trial Court, which was put to challenge in an appeal under Order 43 of Code of Civil Procedure, 1908 (in short ‘CPC’). Learned counsel for petitioner/plaintiff appeared before Additional District Judge, Dhamtari to pursue miscellaneous appeal, where it was informed by learned counsel for the respondents/defendants that civil suit itself was dismissed on 23.06.2014 for want of prosecution. Thereafter, petitioner filed an application under Order 9 Rule 9 of CPC for restoration of suit on the ground that plaintiff became seriously ill and suffered partial paralysis. Upon hearing the parties, trial Court allowed application under Order 9 Rule 9 of CPC. Order passed in application under Order 9 Rule 9 of CPC was challenged by respondents before the High Court in civil revision, which was allowed on the ground that application under Order 9 Rule 9 of CPC was filed with delay, but application under Section 5 of the Limitation Act for condonation of delay was not filed, hence, trial Court erred in allowing main application under Order 9 Rule 9 of CPC without condoning delay to be erroneous and remanded back the case to trial Court. After receiving case back on remand by trial Court, petitioner submitted an application under Section 5 of Limitation Act in support of application filed under Order 9 Rule 9 of CPC. Learned trial Court upon considering the grounds raised in application under Order 9 Rule 9 of CPC, application under Section 5 of Limitation Act as well as evidence brought on record by petitioner and hearing the respective parties, dismissed application under Order 9 Rule 9 of CPC observing that there is contradictory statement between plaintiff and his power attorney holder. Medical documents with respect to treatment as pleaded is not placed on record and there is no satisfactory explanation for delay in filing application under Order 9 Rule 9 of CPC. Order passed by trial Court on 13.10.2017 was put