Restoration of a dismissed suit is warranted when parties demonstrate sufficient cause for non-appearance, especially due to hospitalization from an accident.

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE HIMANSHU JOSHI

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ON THE 19 OF SEPTEMBER, 2025 MISC. APPEAL No. 1485 of 2018 SMT. KUSUM KUSHWAHA AND OTHERS Versus SUNIL KUSHWAHA AND OTHERS Appearance:

Shri L.M. Tripathi, learned counsel for the appellants.

ORDER The present appeal is being preferred under the provision of Order 43 Rule

1(c) of the Code of Civil Procedure , challenging the order dated 19/12/2017 passed in MJC No.2700061/12 by the IVth Additional District Judge, Katni. By Impugned Order dated 19/12/2017, an application under Order 9 Rule 9 of the CPC filed by the appellants for restoration of the suit has been dismissed.

2. In long and short, a civil suit has been instituted by the appellant bearing Civil Suit No.68-A/2008 for declaration, partition and permanent injunction. During the proceedings of the suit, the said civil suit was fixed for compromise on 24/12/2009 before the learned trial court. On 24/12/2009, no one appeared on behalf of the plaintiffs, resultantly the suit was dismissed for want of appearance of the plaintiffs. An application for restoration under Order 9 Rule 9 of CPC has been filed seeking restoration of the civil suit to its original number. The reason assigned is that on 12/12/2009, the petitioner No.1 met with an accident and was hospitalized in Anant Hospital, Jabalpur, reason being, not able to attain the court proceedings. On 13/01/2010, the factum of dismissal of the suit has come to the knowledge of the appellants. Immediately, thereafter, the application has been Signature Not Verified Signed by: RASHMI filed for restoration of the suit under Order 9 Rule 9 of the CPC.

3. The notices were issued upon the application of the appellants and respondents No.2 and 3 made their appearance but have not filed any reply to the application. Respondents No.1, 4 to 10 remained ex-party to the proceedings. The statement of appellants were recorded. No statement on behalf of respondents were recorded. The learned trial Court vide order dated 19/12/2017 has dismissed the application under Order 9 Rule 9 of CPC, resultantly, the suit also stands dismissed. The order of dismissal of the application vide order dated 19/12/2017 was put to test before this Court by filing the present appeal.

4. Heard the parties and perused the record.

5. It is argued by the learned counsel for the appellants that the reason for non appearance of the appellants is bonafide and deserve to be considered. The matter was fixed for compromise and no prejudice will be caused to any side due to non appearance of the appellants. The reason assigned for non appearance is that the appellant No.1 met with an accident on 12/12/2009 and all other appellants were busy in taking care of appellant No.1, thus, failed to appear on the allotted date before the Court. The appellant's non-appearance is bonafide and deserve to be considered being sufficient and satisfactory ground is made out for restoration of the suit. It is prayed that the restoration application may kindly be allowed.

6. The provision of Order 9 Rule 9 of the Code of Civil Procedure clearly speaks that if he satisfies the Court that there was sufficient cause for non- appearance then only the suit can be restored. Order 9 Rule 9 CPC reads as under:

9. Decree against plaintiff by default bars fresh suit:

(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his Signature Not Verified Signed by: RASHMI non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks f