IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 25 OF NOVEMBER, 2024 MISC. PETITION No. 1327 of 2022 NANDLAL (DEAD) THROUGH LRS KRISHNA PRASAD PANDEY AND OTHERS Versus VIDYAKANT AND OTHERS Appearance:

Shri Rajvardhan Singh - Advocate for the petitioners.

Shri Aatish Yadav - Advocate for respondent no.1.

ORDER Assailing the order dated 13.3.2007 passed in MJC No.36/2006 by learned Second Civil Judge Class-II, Sidhi, whereby an application filed under Order 9 Rule 4 CPC for restoration of suit has been dismissed, the present petition has been filed.

2. It is the case of the petitioner that on 22.10.1990 he filed a civil suit for declaration of title in respect of 1/3rd share and permanent injunction in respect of the suit property. On notice being issued, defendants no.1 and 2 appeared before the Trial Court and filed their written statement. The suit was fixed for 22.8.2006 for plaintiff's evidence before the Trial court but nothing appeared on that date and ultimately, the suit was dismissed for want of prosecution. Thereafter, an application under Order 9 Rule 4 CPC was filed on behalf of the plaintiff for restoration of the suit showing sufficient cause for his non-appearance on 22.8.2006. However, the said application Signature Not Verified Signed by: JITENDRA was rejected by the Trial Court vide impugned order dated 16.3.2007 and refused to restore the civil suit instituted by the petitioner / plaintiff. Thereafter, the petitioner had bona fidely prosecuted Misc. Civil Appeal bearing MCA No.10/2021 before the learned Additional District Judge against order dated 16.3.2007 but the said Misc. Civil Appeal was dismissed on 26.6.2021 on the ground that the same is not maintainable. It is also prayed that the time spent in prosecuting the Misc. Civil Appeal deserves to be excluded in view of provisions of Section 14 of the Limitation Act. Thereafter, the petitioner filed a Civil Revision No.261/2021 against the impugned order before this Court but the same was dismissed as withdrawn on the ground of maintainability with liberty to prefer a petition vide order dated 10.3.2022. Hence, the present petition has been filed. To buttress his contentions, learned counsel for the petitioner has placed reliance on the judgment passed by the Supreme court in the case of Rafiq Vs. Munshilal, reported in AIR 1981 SC 1400 and Mahila Jagannathi Vs. Naga, reported in (1997) 2 MPLJ 326 and prayed that this petition be allowed by setting aside the impugned order whereby the application for restoration of civil suit has been rejected.

3. Counsel for the respondent no.1 has vehemently opposed the aforesaid contentions pointing out that the petitioner has left over his right for a long considerable period of time. The date of dismissal of the civil suit is dated 16.3.2007. Further contended that Misc. Civil Appeal was filed before the learned Appellate Court in the year 2021 which was numbered as MCA No.10/21 and the same was finally decided on 26.6.2021 holding that it is not Signature Not Verified Signed by: JITENDRA maintainable and was dismissed on merits. Therefore, it is incorrect to say that the same was dismissed being not maintainable. Thereafter, there is no explanation by the petitioner for such a long period in approaching the Appellate Court. It is contended that looking to the conduct of the petitioner, learned Trial Court has rightly dismissed the suit for want of prosecution. Thereafter, civil revision preferred by the petitioner before this Court being CR No.261/2021 was also dismissed as withdrawn vide order dated 10.3.2022 with liberty to file a Misc. Petition. In pursuance thereto, this Misc. Petition has been filed.

4. Heard learned counsel for the parties and perused the record.

5. On perusal of the record it is seen that the original civil suit was instituted on 27.10.1990 and the same was dismissed on 9.3.2000 for want of prosecution. On an application being filed for restoration