An order refusing to condone the delay in filing an application to restore a suit dismissed in default is essentially an order rejecting the restoration of the suit, which is maintainable as an appeal under the applicable rules of civil procedure.

JUDGMENT

1. The present petition is filed under Articles 226 and 227 of the Constitution of India, 1950 by the petitioner – original plaintiff. The petitioner has prayed for following reliefs:

“A) That this Hon’ble Court be pleased to issue writ of or in the nature of Certiorari, or any other appropriate writ, order or direction directing and quashing the order passed on civil misc. Application no.7 of 2023 for condonation of delay dated 23/01/2024, passed by the learned Principal Senior Civil Court, Khambhat and allowed the same.

B) That any other and further relief that is deemed fit and expedient in the interest of justice be granted.”

2. Heard learned advocate Mr. Jinesh Kapadia for the petitioner and learned advocate Mr. Apurva Kapadia for respondent Nos. 1 and 2.

3. Learned advocate for the petitioner submitted that the plaintiff, father of the present petitioner, had instituted Regular Civil Suit No. 70 of 2007 seeking declaration and permanent injunction in respect of an easementary right of way over the land bearing Survey Nos. 1205 and 1206 of village Vatadara, Taluka Khambhat. It is submitted that the learned Trial Court granted interim injunction in favour of the plaintiff. It is further submitted that, owing to the illness of the original plaintiff, and the fact that the petitioner and other family members were residing at Vadodara, plaintiff did not remain present and the suit came to be dismissed for default under the provisions of Order IX Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) on 16.02.2018. It is further submitted that the original plaintiff expired on 24.10.2021. It is contended that the petitioner had no knowledge of dismissal of the suit until a legal notice dated 03.09.2022 was issued by respondent No. 2 restraining use of the right of way and informing about dismissal of the suit. It is contended that upon acquiring knowledge, the petitioner filed an application for restoration of suit along with an application for condonation of delay, being Civil Misc. Application No. 7 of 2023. Respondent Nos. 3.1 to 3.3 filed pursis expressing no objection to the condonation of delay, whereas respondent Nos. 1 and 2 opposed the same. The learned Trial Court, by order dated 23.01.2024, rejected the application for condonation of delay, adopting a hypertechnical approach and without appreciating the explanation tendered by the petitioner regarding lack of knowledge and sufficient cause.

4. Learned advocate for the petitioner submitted that the challenge in the Misc. Civil Appeal was an application for condonation of delay for setting aside the order of dismissal of the suit for default. The order passed by the learned Trial Court is under Order IX Rule 9 of the Code. Learned advocate for the petitioner has relied upon Order XLIII Rule 1(c) of the Code. It is submitted that an appeal shall lie from an order passed under Rule 9 of Order IX rejecting an application for an order to set aside the dismissal of the suit. It is submitted that while rejecting the application for condonation of delay by the learned Trial Court, the application under Order IX Rule 9 is dismissed and therefore, the challenge by way of a Civil Misc. Appeal is maintainable. The application under Section 5 of the Limitation Act is not a stand alone application as the main application was under Order IX Rule 9 of the Code. In support of his contention learned advocate for the petitioner has relied upon the following decisions:

(i) “ Jaswant Singh and Ors Vs. Parkash Kaur and Anr ” reported in (2018