Restoration of a suit allows for the revival of an appeal previously deemed infructuous.

HON'BLE MR. JUSTICE ARUN MONGA

Order (oral)

28/05/2025

1. Applicant Before this court seeks revival of his appeal, which was earlier withdrawn as infructuous way back on 05.07.2010 by order of this court. He is one of the defendants in the civil suit originally instituted by co-plaintiff-respondent No.1 herein– Madhu Rathi (plaintiff) before the competent civil court at Jodhpur, wherein the lis pertains to property rights of the suit property.

2. At the outset, on a court query, as to how the instant application is maintainable at this belated stage, learned counsel for the applicant states that subsequent developments and change of circumstances, as more specifically enumerated in the application, are self-speaking, and are compelling enough for the appeal to be heard on merits. Let us first have a look at that.

2.1. Learned counsel states that, briefly speaking, background of the case is that applicant-Pushpchand/current owner originally filed a civil suit on 30.05.1991 against the erstwhile owners of the suit land. Said suit was decreed in favor of Pushpchand on 16.04.1996. In execution of the court decree, sale deed was executed in favor of Pushpchand and even mutation entry was carried out in his name in the revenue records. However, in the interregnum, on 29.06.1992, during pendency of the suit filed by Pushpchand, Kalu Ram sold his share in the suit land to 63 different persons including respondent no.1 (Madhu Rathi) and 3 (Vijaylaxmi) herein. A sale deed dated 07.10.1992 was also executed by the vendor/Kalu Ram in favor of those 63 persons. Subsequently, respondent 1 and 3 herein, along with others, sought to implead themselves in the execution proceedings instituted by Pushpchand for effectuating decree dated 16.04.1996 granted in favour, but their applications were dismissed by executing court since they were not party in the original suit filed by Pushpchand.

2.2. Thereafter, the respondent no.1 and 3 and seven others, as a co- plaintiff filed a suit (sometime in September, 1997) against the applicant seeking declaration that decree dated 18.04.1996 passed in favor of Pushpchand was collusive and obtained by fraud. Upon service the applicant appeared and contested the suit.

2.3. Later on, the suit filed was dismissed as withdrawn qua all 9 plaintiffs on 01.06.2004. The withdrawing/dismissal of suit vide order dated 01.06.2004, was neither challenged nor otherwise complained of by any of the parties.

2.4. However, as a bolt from the blue, after more than 2 years, i.e. on 21.08.2006, respondent No.1 and 3 (co-plaintiffs) filed an application under Order 9 Rule 9 CPC seeking restoration of the suit. Application under 9 rule 9 was preferred without filing any application for condonation of delay. Other 7 plaintiffs did not seek restoration of the suit proceedings. Thus, out of 9 plaintiffs, 7 plaintiffs, except respondent no.1 and 3 herein, have withdrawn from the foray. It is this application under order 9 rule 9, which was allowed vide a trial court order dated 01.05.2008, that led to filing of the main appeal under Order 41 of CPC by the applicant herein (bearing Civil Misc. Appeal No.681/2008).

2.5. The aforesaid appeal was admitted by a Coordinate Bench of this Court (then seized of the matter) vide an order dated 26.05.2008 and notices were issued to the respondents, including 1 and 3 herein.

2.6. It so happened that during the pendency of the aforesaid appeal, the applicant herein filed an independent application under Order 7 Rule 11 CPC in the pending trial proceedings, seeking rejection of the plaint, inter alia pleading that it did not disclose any cause of action.

2.7. The learned trial court allowed the applica