Nafr High Court
Case Details
1 Digitally signed by AVANISH KUMAR PATHAK Date: 2025.03.10 10:55:45 +0530 2025:CGHC:10433 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 26 of 2014 1 - Deepak Aalu Bhandar Throu Propritor And Ors. Narendra Kumar Chugani, Address- Near Choti Masjid, Shop No. D-44, Vyapar Vihar, Bilaspur, P.S. Bilaspur, Distt. Bilaspur C.G., 2 - Smt. Sushila Devi Chugani W/o Late Ravindra @ Ravi Chugani Aged About 43 Years R/o Yadgar Bhawan, Behind High Court Road, Bilaspur, P.S. Bilaspur, Distt. Bilaspur C.G. 3 - Narendra Kumar Chugani S/o Late Ravindra @ Ravi Chugani Aged About 27 Years R/o Yadgar Bhawan, Behind High Court Road, Bilaspur, P.S. Bilaspur, Distt. C.G. Bilaspur 4 - Jai Kishan Chugani S/o Late Ravindra @ Ravi Chugani Aged About 23 Years R/o Yadgar Bhawan, Behind High Court Road, Bilaspur, P.S. Bilaspur, Distt. Bilaspur C.G. 5 - Ku. Swati Chugani D/o Late Ravindra @ Ravi Chugani Aged About 20 Years R/o Yadgar Bhawan, Behind High Court Road, Bilaspur, P.S. Bilaspur, Distt. Bilaspur C.G. ... Appellants versus 1 - Chandra And Company S/o Through- Pro. Narayan Vadhwani, S/o Late Tolaram Vadhwani, Address- Chandra Aalu Bhandar, Vyapar Vihar, Bilaspur, P.S. Bilaspur, Distt. Bilaspur C.G., Chhattisgarh ... Respondent For appellants
Legal Reasoning
Having considered aforesaid facts and circumstances of the case, the cause of delay shown by the appellants/defendants/applicants in filing the application for restoration of the civil suit, appears to be bonafide. 9. The Supreme Court in N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] observed that the sufficient cause has to be construed liberally especially when the delay is not deliberate and mala fide. Paras 11 & 12 of the said decision are as under: “11. Rules of limitation are not meant to destroy the right 5 of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time newer causes would sprout up necessitation newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as 6 to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari {AIR 1969 SC 575) and State of West Bengal Vs. Administrator, Howrah Municipality (AIR 1972 SC 749)." 10. In B.S. Sheshagiri Setty and others Versus State of Karnataka and others [(2016) 2 SCC 123], their Lordships of the Supreme Court have held that when what is at stake, is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. It is apt to reproduce the following observations:- "28. If a statute does not prescribe the time limit for exercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appellants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. " 11. In the case in hand, the person representing the civil suit namely Ravi Kumar Chhugani died and after about 2 months from his death, appellants filed application under Order 9 Rule 13 read with Section 151 of the CPC, therefore, it cannot be said that, they filed the 7 application belatedly with malafide intention or it was deliberate. 12. In view of above discussion and in the light of above cited case law, this misc. appeal filed by the appellants/defendants/applicants is allowed. The order dated 23-4-2013 passed by the Sixth Additional District Judge, Bilaspur in MJC No. 3/2012 is set aside. Application filed by the appellants under Order 9 Rule 13 read with Section 151 of the CPC is allowed. Consequently, the impugned judgment and decree dated 20-7-2010 passed by the Additional District Judge, Bilaspur in Civil Suit No. 20-B/2009 is set aside. It is directed to restore Civil Suit No. 20-B/09 (Chandra and Company Vs. Deepak Aloo Bhandar and anr.) in its original number and after providing due opportunity of hearing to the parties, it be decided in accordance with law expeditiously preferably within a period of six months from the date of receipt/submission of copy of this order. The concerned Addl. District Judge is also directed that, after restoration of the civil suit, notice be issued to the plaintiff, if required. However, counsel for both the parties are directed to keep present their respective parties before the Addl. District Judge, Bilaspur on 4-4-2025. 13. Both the parties are also directed to cooperate with the trial Court for expeditious disposal of the civil suit. 14. This Misc. Appeal is accordingly disposed of. Pending interim
Arguments
: Mr. Mayank Gupta, Adv. on behalf of Mr. Manoj For Respondent : None. Paranjpe, Adv. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) Order on Board 3/3/2025 1. This appeal has been preferred by the appellants under Order 43 Rule 1(d) of the Civil Procedure Code, 1908 (henceforth ‘CPC’) challenging 2 the order dated 23-4-2013 passed by the Sixth Addl. District Judge, Bilaspur in MJC case No. 03/2012, whereby application filed by the appellants under Order 9 Rule 13 read with Section 151 of CPC has been dismissed. 2. Facts of the case in nutshell are that, respondent/plaintiff had filed Civil Suit bearing No. 20-B/09 for recovery of Rs. 60,431/- against appellant No. 1/defendant No. 1 ‘Dipak Aloo Bhandar’ and defendant No. 2 Ravi Kumar Chhugani. In that civil suit, defendants remained ex-parte, therefore, ex-parte judgment and decree dated 20-7-2010 was passed in favour of respondent/plaintiff and defendants were directed to pay Rs. 60,431/- to the plaintiff. 3. Subsequently, appellants/defendants/applicants filed an application under Order 9 Rule 13 read with Section 151 of the CPC stating inter alia that defendant No. 2 Ravi Kumar Chhugani was proprietor of defendant No. 1 firm ‘Deepak Aloo Bhandar’, who died on 9-10-2010. He was taking care of the case, as such, appellants/applicants were not aware about pendency of the civil suit as well as judgment and decree dated 20-7-2010 passed by the trial Court. They came to know about it when servant of plaintiff informed the appellants/applicants about ex-parte judgment, then they filed application under Order 9 Rule 13 read with Section 151 of the CPC. 4. Learned counsel for the appellants/applicants would submit that since Ravi Chhugani was proprietor of ‘Deepak Aloo Bhandar’, as such, he used to appear in the said civil suit, as such, appellants/applicants were not aware about passing of judgment and decree dated 20-7- 2010 passed by the trial Court. Ravi Kumar Chhugani, who was 3 husband of appellant No. 2 and father of appellants No. 3 to 5 died on 9-10-2010. Thereafter, when servant of plaintiff told them about the ex- parte judgment and decree, and they obtained certified copy of the same on 18-11-2010, then only they came to know about passing of ex-parte judgment and decree and, thereafter they filed restoration application under Order 9 Rule 13 read with Section 151 of the CPC. Though limitation for filing such application is 30 days and the appellants had filed aforesaid application after about 9 months of passing of impugned judgment and decree, but delay was bonafide as the main party, who was representing the civil suit, died, as such, appellants were not aware about aforesaid facts. Hence, delay may be condoned, but learned trial Court without considering aforesaid facts, has dismissed the application filed by the appellants under Order 9 Rule 13 read with Section 151 of the CPC. Hence, it is prayed that, this appeal may be allowed, the application under Order 9 Rule 13 read with Section 151 of the CPC may also be allowed and the judgment and decree dated 20-7-2010 passed in Civil Suit No. 20-B/09 may be set aside and the civil suit may be restored in its original number. 5. Though respondent is represented by his counsel, but despite repeated call, none appears on his behalf, rather, in reply of the application filed before the trial Court, it was contended by respondent/plaintiff that, appellants/defendants wanted to cause delay in payment of amount, as such, they remained ex-parte and belatedly, they have filed restoration application, hence, it was prayed that the application was liable to be rejected. 6. I have heard learned counsel for the appellants and perused the 4 material available on record carefully. 7. The ex-parte judgment and decree was passed by learned District Judge, Bilaspur on 20-7-2010 in Civil Suit No. 20-B/09. Defendant Ravi Chhugani died on 9-10-2010. Application under Order 9 Rule 13 read with Section 151 of the CPC was filed by the appellants/ defendants/applicants on 13-12-2010 after about two months from the date of death of original defendant Ravi Kumar Chhugani. Thus, of course, there is delay in filing restoration application, but it is evident from the record that, original defendant Ravi Kumar Chhugani who was proprietor of the firm ‘Dipak Aloo Bhandar’ was said to be died on 9-10- 2010, which has also been stated by Narendra Kumar Chhugani, who is son of original defendant Ravi Kumar Chhugani and his witnesses. Thus, since original defendant died, who was representing the case, therefore, contention of appellants that they came to know about said judgment and decree after informing by the servant of plaintiff does not seem to be unreliable. Appellants filed application under order 9 Rule 13 read with Section 151 of the CPC after about 2 months from the date of death of original defendant Ravi Kumar Chhugani. 8.
Decision
application(s), if any, stands disposed of. No order as to cost(s). Pathak Sd/- (Naresh Kumar Chandravanshi) JUDGE