BHAGWAN JHA Vs. SWAMI SHRI JUGAL KISHOR BARE JAMT MANDIR

JUDGEMENT

(1.) This Petition has been filed under Article 227 of the Constitution of India being aggrieved by the order dtd. 18/11/2022 passed by the 2nd Civil Judge, Class-1 Rajnandgaon in Civil Suit No.40-A/12 whereby, the application filed by the Respondent/Plaintiff under Order 9 Rule 9 CPC for restoration of the suit which was dismissed for want of prosecution on 30/9/2016, was allowed.

(2.) Brief facts of the case are that the Respondent/Plaintiff has filed a Civil Suit for declaration and various other reliefs against the Petitioner and during pendency of the original Civil Suit i.e Civil Suit No.40-A/2002, the Respondent/Plaintiff Mahant Hari Das died and the present Respondent -Mahant Narendra Das Guruji represented him. The suit was initially filed in the year 1993 and thereafter, renumbered as Civil Suit No.40-A/2002 and on the hearing date i.e. 30/9/2016, the Respondent/Plaintiff could not appear, therefore, the said Suit was dismissed for want of prosecution. Later on, the Respondent/Plaintiff has filed an application under Order 9 Rule 9 CPC for restoration of the said suit on 28/2/2017 and also simultaneously filed an application under Sec. 5 of the Limitation Act to condone the delay in filing the said application, which has been allowed by the order impugned.

(3.) Shri Thakur, learned Counsel for the Petitioner submits that the order impugned is not sustainable in law as the Respondent/Plaintiff has failed to give satisfactory explanation for the delay caused in filing the restoration application and the reasons assigned by him appears to be fanciful and contradictory. He further submits that the Respondent/Plaintiff, on one hand, given explanation that after returning from Rajim kumbhmela, he has enquired about the status of the case and on the other hand, he says that he has equired the same from the Court's Reader and as such, no proper explanation has been given, therefore, the delay caused is deliberate and the Respondent/Plaintiff had pursued the litigation in a manner of gross negligence, therefore, condoning the delay caused in filing the application for restoration by the order impugned whereby, the Civil Suit has been restored, is bad in law. He further submits that whenever a false explanation has been given, no liberal approach has to be taken by the Court for restoration and placed reliance on the order passed in the matter of Virendra Kumar Shukla vs. Rajendra Shankar Shukla and Ors, F.A No.148/2019 dtd. 28/9/2022 and further placed reliance on Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai reported in (2012) 5 SCC 157, Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others reported in (2013) 12 SCC 649 and Balwant Singh vs. Jagdish Singh reported in (2010) 8 SCC 685 and prays to quash the order impugned. He draws attention of the Court to paras 23 and 24 of Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai (supra) which are as under:-