IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

SRI JUSTICE S.K. MISHRA, A.C.J.

AND

SRI JUSTICE R.C. KHULBE, J.

4^TH APRIL, 2022

A.O. No. 36 OF 2022

Between:

Dinesh Thakur

…Appellant.

and

Sakshi Bansal

…Respondent

Counsel for the appellant.

:

Mr. Chandra Shekhar Joshi and Mr.

Gaurav Kumar, learned counsel.

Counsel for the respondent

:

Ms. Divya Jain and Mr. Manish Lohani,

learned counsel.

Upon hearing the learned Counsel, the Court made

the following

JUDGMENT : (per Sri S.K. Mishra, A.C.J.)

In this appeal, the petitioner, before the

learned Judge, Family Court, Dehradun in Misc. Case No.

25 of 2020, has assailed the order passed by the Court

on 17.12.2021 dismissing his application under Order 9

Rule 9 of the Code of Civil Procedure, 1908 (hereinafter

referred to as “the Code” for the sake of brevity), read

with Section 151 of the Code.

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2.

The facts of the present case are that the

appellant initiated a proceeding under Section 9 of the

Hindu Marriage Act against the respondent for restitution

of conjugal rights. It was registered as Civil Proceedings

No. 437 of 2019, and was dismissed for default on

14.11.2019. Thereafter, the present appellant filed

another application bearing Misc. Application No. 74 of

2019 for restoration of the same, but in the meantime,

he was arrested and was remanded to judicial custody

from 31.12.2019 till 17.03.2020. In the interregnum, on

31.01.2020, when he was in the custody, the first

Restoration Application was listed before the learned

Judge, Family Court, Dehradun and was dismissed for

default.

3.

The appellant again filed Misc. Application No.

25 of 2020, out of which the present Appeal arises, for

restoration of the first Restoration Application (No. 74 of

2019), which was also dismissed on 08.10.2020 holding

that there was thirteen days’ delay in preferring the

Restoration Application, and no Delay Condonation

Application was filed in the said case.

4.

It is also borne out from the record that at

Paragraph No. 9 of the order dated 17.12.2021, the

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learned Judge, Family Court, has noted that Misc.

Application No. 74 of 2019 was dismissed on 31.01.2020,

and the limitation for restoration of the same is thirty

days, which came to expire on 01.03.2020; no Delay

Condonation Application has been filed. It is again noted

by the learned Judge, Family Court, Dehradun that as per

the orders passed by the Hon’ble Supreme Court, the

limitation for the period from 15.3.2020 till 02.10.2021

has been excluded. Even then, it was held by the learned

Judge that the application has been filed at a belated

stage.

5.

At

Paragraph

No.10

of

the

order

dated

17.12.2021, the learned Judge, Family Court, Dehradun

has held that in the second Restoration Application, the

appellant has not mentioned the number of the case that

has to be restored. Hence, on these two grounds, the

Restoration Application has been dismissed.

6.

It would be appropriate on our part to quote

Order 9 Rule 9 of the Code. The same is reproduced as

under:-

“9. Decree against plaintiff by default bars

fresh suit.

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(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 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 fit.

and shall appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless

notice of the application has been served on the

opposite party.”

7.

The aforesaid Order 9 Rule 9 of the Code is a

benevolent provision, which