Nafr High Court
Case Details
1 REKHA SINGH Digitally signed by REKHA SINGH 2025:CGHC:21267 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 426 of 2020 1 - Jagannath Lahare S/o Late Kolambar Das Aged About 49 Years Caste - Satnami, R/o In Front Of Sony Television Show Room, Shrikant Verma Marge, Vinoba Nagar, Bilaspur, Civil And Revenue District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Raj Kumar Lahare S/o Late Kolambar Das Aged About 42 Years Caste - Satnami, R/o In Front Of Sony Television Show Room, Shrikant Verma Marge, Vinoba Nagar, Bilaspur, Civil And Revenue District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh
Legal Reasoning
3 - Bharat Kumar Lahare S/o Late Kolambar Das Aged About 38 Years Caste - Satnami, R/o In Front Of Sony Television Show Room, Shrikant Verma Marge, Vinoba Nagar, Bilaspur, Civil And Revenue District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ... Petitioner(s) versus 1 - Nishant Aged About 20 Years R/o Village Bedapara, Amlidih, Post Khamhi, Tahsil Lormi, Civil And Revenue District Mungeli Chhattisgarh., District : Mungeli, Chhattisgarh 2 - State Of Chhattisgarh Through The Collector Bilaspur, Civil And Revenue District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ---- Respondents For Petitioners For State/respondent No.2: Mr. Pramod Ramteke, Panel Lawyer For Respondent No.1 : Mr. Vishvanath Shriwas, Advocate : None appears though served. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 08.05.2025 1. The petitioners/plaintiffs have challenged the order dated 29.11.2019 passed by the Sixth Additional District Judge, Bilaspur -2- (C.G.) whereby the application moved under Section 5 of the Limitation Act was rejected and the application moved under Order 9 Rule 9 of the CPC was accordingly dismissed. 2. Mr. Shriwas, learned counsel appearing for the petitioners/plaintiffs would submit that the plaintiffs filed a suit for declaration of title and permanent injunction and it was registered as Civil Suit No.2-A/2016. He would further submit that a summons was issued to the defendants. The plaintiffs could not appear before the learned Trial Court on 21.04.2016 nor their counsel appear on account of some personal reasons, therefore, the suit was dismissed for want of prosecution. He would contend that no information was given by the counsel engaged by the petitioners with regard to the dismissal of the civil suit and in the month of July, 2016, when the petitioners/plaintiffs approached their counsel, it was informed that the suit had been dismissed. He would further contend that the petitioners collected the certified copy of the order and moved an application under Order 9 Rule 9 of the CPC along with an application for condonation of delay. He would also submit that due to a mistake, the petitioners mentioned incorrect provisions of law and the application was moved under Order 9 Rule 9 of the CPC instead of Order 9 Rule 4 of the CPC. He would further argue that the application was moved for the restoration of civil suit. He would also argue that the learned Trial Court rejected the application as there was a delay of 432 days. He would state that the delay part was properly explained by the petitioners but the learned Trial Court adopting a rigid approach 3 rejected the application. He would pray to set aside the order passed by the learned Trial Court and to restore the civil suit to its original number. 3. On the other hand, learned counsel appearing for the State would oppose the submissions made by Mr. Singh. 4. Heard learned counsel appearing for the parties and perused the documents placed on the record. 5. A perusal of the documents would show that a civil suit was filed by the plaintiffs/petitioners for declaration of title and permanent injunction. The plaintiffs or their counsel did not appear on 21.04.2016, therefore the suit was dismissed for want of prosecution. The petitioners moved an application for the restoration of the civil suit on 25.09.2017 and there was a delay of 432 days. An application for condonation of delay was also moved, wherein a stand was taken that, in the absence of information from their counsel, they did not appear or move the application for restoration. 6. A perusal of the application would show that it was filed under Order 9 Rule 9 read with Section 151 of CPC whereas the application ought to have been moved under Order 9 Rule 4 of the CPC. 7. Non-mentioning of the correct provision of law or mentioning of wrong provision of law in the application cannot be a ground to reject the application whereas the recital of the application would be relevant. 8. A perusal of the application moved under Section 5 of the -4- Limitation Act along with an application for restoration would show that in the absence of information, the petitioners could not move the application for restoration within the period of 30 days. 9. The procedure is handmaid. The Court should not adopt a rigid view while dealing with the application for condonation of delay or restoration. 10. The Hon’ble Supreme Court in the matter of Sangram Singh Versus Election Tribunal, Kotah reported in AIR 1955 SC 425 held that “it is “procedure”, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against.” 11. The Hon’ble Supreme Court in the matter of Sushil Kumar Sen Versus State of Bihar reported in 1975 (1) SCC 774 has held that “morality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.” 12. The Hon’ble Supreme Court in the matter of State of Punjab Versus Shamlal Murari reported in 1976 (1) SCC 719 held that “processual law is not to be a tyrant but a servant, not an 5 obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” 13. Taking into consideration the fact that the civil suit filed by the plaintiffs was dismissed for want of prosecution and the application for restoration was moved by the plaintiffs whereas the case has not been decided on merits, in the interest of justice, the order passed by the learned Trial Court dated 29.11.2019 whereby the application moved under Section 5 of the Limitation Act was rejected, is hereby set aside. 14. Learned Trial Court is directed to reconsider the application moved by the petitioners for restoration afresh after affording a due opportunity of hearing to the parties. The petitioners and the respondents are directed to appear before the learned Trial Court on the 8th of July, 2025.
Decision
15. In view of the above, the present petition is allowed. Rekha Sd/- (Rakesh Mohan Pandey) Judge