MANU/SC/0037/2019

Equivalent/Neutral Citation: 2019 (1) C C C 68 , 2020(II)C LR(SC )399, 2018 (Suppl) Him. LR. 3084, 2019 INSC 42, 2019(1)RC R(C ivil)683,
(2019)3SC C 569, 2019 (6) SC J 445

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 230 of 2019 (Arising out of SLP (C) No. 12794 of 2014)
Decided On: 09.01.2019
Kusumben Indersinh Dhupia Vs. Sudhaben Biharilalji Bhaiya and Ors.
Hon'ble Judges/Coram:
R. Banumathi and Indira Banerjee, JJ.
Case Note:
Civil - Restoration of suit - Present appeal arose out of judgment passed by
High Court by which High Court affirmed order of Trial Court and thereby
declining to restore suit - Whether High Court was right in affirming order of
trial Court
Facts:
Appellant-Plaintiff filed Civil Suit against Respondents No. 1 and 2 for
declaration and injunction in respect of plot. Issues were framed on 3rd
October, 2008 and suit was dismissed for default. Appellant-Plaintiff
immediately filed an application under Order IX, Rule 9 of Code of Civil
Procedure, 1908 (CPC) for restoration of said suit which came to be dismissed
o n ground that, Plaintiff and his advocate were continuously remaining
absent and Plaintiff was not interested in pursuing matter. Revision petition,
Special Civil Application, preferred by Appellant-Plaintiff before High Court
also came to be dismissed.
Held, while allowing the appeal
1. In view of Rojkam-order sheet of Trial Court, both Trial Court as well as
High Court was not right in observing that, Appellant-Plaintiff was not
interested in pursuing restoration application. Application for restoration of
suit filed by Appellant-Plaintiff was well within period of limitation.
Appellant-Plaintiff was present in almost all hearings before Trial Court which
indicates that he was genuinely pursing matter. Appellant-Plaintiff having
filed suit for declaration and injunction ought to be given an opportunity to
pursue his suit. [9]
2. Impugned order of High Court was set aside and present appeal was
allowed. Civil Suit shall stand restored on file of Additional Senior Civil Judge.
Trial Court shall accord sufficient opportunity to both parties and proceed with
matter in accordance with law. Trial Court shall expedite trial of suit and both
parties shall co-operate for early disposal of suit. [10]

JUDGMENT

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R. Banumathi, J.
1. Leave granted.
2 . This appeal arises out of judgment and order dated 28th January, 2014 passed by
the High Court of Gujarat at Ahmedabad in Special Civil Application No. 16821 of 2011
in and by which the High Court affirmed the order of the Trial Court and thereby
declining to restore the suit.
3. The Appellant-Plaintiff filed Civil Suit No. 217 of 1994 against Respondents No. 1 and
2 for declaration and injunction in respect of plot No. 16-E, admeasuring 250 sq. yds.
on Revenue Survey No. 62-65, Village Althan, Surat. The issues were framed on 3rd
October, 2008 and the suit was dismissed for default on 6th November, 2008.
4. The Appellant-Plaintiff immediately filed an application Under Order IX, Rule 9 of the
Code of Civil Procedure for restoration of the said suit on 4th December, 2008 which
came to be dismissed on 21st July, 2011 on the ground that the Plaintiff and his
advocate are continuously remaining absent and the Plaintiff is not interested in
pursuing the matter. The revision petition, Special Civil Application No. 16821 of 2011,
preferred by the Appellant-Plaintiff before the High Court also came to be dismissed.
Being aggrieved, the Appellant-Plaintiff is before us.
5. The first Respondent is represented by Mrs. Saroj Haresh Raichura, Advocate. Second
Respondent-Bhagwandas Nandlal Bagdi, remained unserved in spite of issuance of
notice. By Order dated 4th December, 2018, substituted service was ordered. In
compliance thereof, the Appellant-Plaintiff effected service through paper publication in
'Gujarati Daily' and has also filed affidavit to that effect. Service on the second
Respondent is held to be sufficient.
6. We have heard Mr. Shamik Sanjanwala, learned Counsel appearing for the Appellant-
Plaintiff and Mrs. Saroj Haresh Raichura, learned Counsel appearing for Respondent No.
1 and also perused the impugned judgment and other materials on record.
7 . Mr. Shamik Sanjanwala, learned Counsel appearing for the Appellant-Plaintiff, has
drawn our attention to the RojKam-order sheet of the 11th Additional Senior Civil
Judge, Surat, and submitted that after filing the application for restoration of the suit,
the Appellant-Plaintiff remained present in almost all the hearings but the matter could
not be taken up as the business of the court did not permit. Mr. Shamik further
submitted that only on the date of hearing i.e. 21st July, 2011, the Appellant-Plaintiff
could not be present and on that date the Trial Court has dismissed the application filed
Under Order IX, Rule 9 of the Code of Civil Procedure, by observing that the Appellant-
Plaintiff was remaining absent continuously.
8. Mr. Shamik has taken us through the various dates of hearing before the Trial Court
in support of his contention. In the Rojkam-order sheet, of the Trial Court it is seen that
although the application (under Order IX, Rule 9 of the Code of Civil Procedure) for
restoration of the suit was filed as early as on 4th December, 2008, which was well
within the period of limitation and the Appellant-Plaintiff was present in most of the
hearings, the application could not be taken up as the business of the Trial Court did
not permit to proceed with the matter. By perusal of Rojkam-order sheet, it also
appears that though the Appellant-Plaintiff was present number of times and the
Respondents-Defendants were not present. The Appellant-Plaintiff remained present
before the Trial Court on 02.02.2009, 20.04.2009, 25.06.2009, 24.08.2009,
29.09.2009, 11.11.2009, 09.12.2009, 11.01.2010, 16.02.2010, 16.03.2010,
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17.04.2010, 26.07.2010, 07.08.2010, 18.11.2010, 05.01.2011, 05.02.2011,
24.02.2011, 16.03.2011, 22.03.2011 and 11.05.2011 as per the Rojkam-order sheet.
9. Having regard to the Rojkam-order sheet of the Trial Court, we are of the view that
both the Trial Court as well as the High Court were not right in observing that the
Appellant-Plaintiff was not interested in pursuing the restoration application. As pointed
out earlier, application for restoration of the suit filed by the Appellant-Plaintiff was well
within the period of limitation. The Appellant-Plaintiff was present in almost all hearings
before the Trial Court which indicates that he was genuinely pursing the matter. The
Appellant-Plaintiff having filed the suit for declaration and injunction in our considered
view ought to be given an opportunity to pursue his suit.
10. In the result, the impugned order of the High Court is set aside and this appeal is
allowed. Civil Suit No. 217 of 1994, shall stand restored on the file of Additional Senior
Civil Judge, Surat. The Trial Court shall accord sufficient opportunity to both the parties
and proceed with the matter in accordance with law. The Trial Court shall expedite the
trial of the suit and both the parties shall co-operate for the early disposal of the suit.
No costs.
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