Jharkhand High Court
Rabia Bibi @ Rabia Khatoon vs Julekha Bibi Widow Of Late Qutubuddin ... on 25 February, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 713 of 2023
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1.Rabia Bibi @ Rabia Khatoon, wife of Md. Qutibuddin Ansari aged 46
years
2.Aasrabatul @ Aasra Bibi wife of Md. Shafique Ansari aged 36 years
Sl.No.1 and 2 both resident of Village Lokbad, P.O. Brahmandiha,
P.S. Topchanchi, District Dhanbad
..... Applicant/ Petitioners
-- Versus --
1.Julekha Bibi widow of late Qutubuddin Ansari resident of Village Lokbad,
P.O. Brahmandiha, P.S. Topchanchi, District Dhanbad
2.General Public of Village Lokbad, P.O. Brahmandiha, P.S. Topchanchi,
District Dhanbad ...Respondent/ Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner(s) : Mr. Shashank Shekhar, Advocate
For the Opposite Party(s) :
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11/25.02.2025 Heard the learned counsel for the petitioners as well as the learned
counsel for the opposite parties.
2. This petition has been filed under Article 227 of the Constitution of India
whereby prayer has been made for setting aside the order dated 05.04.2023
passed in Civil Misc. Appeal No.01 of 2023 by learned Principal District Judge,
Dhanbad whereby a petition filed for restoration under Order IX Rule 4 read
with Section 151 of the CPC along with an application under Section 5 of the
Limitation Act, 1963 has been rejected by the learned court. The further prayer
is made for setting aside the order dated 13.09.2022 whereby the Original Suit
No.07 of 2021 has been dismissed for non-prosecution and the prayer is also
made for restoration of Probate Suit No.07 of 2021 to its original file.
3. Mr. Shashank Shekhar, the learned counsel appearing on behalf of the
petitioners submits that Original Suit No.07 of 2021 was at the initial stage and
even notices have not been issued in that case. He submits that the said suit
was dismissed for default as the court-fee was not filed within granted time. He
submits that thereafter a petition for restoration of the said suit under Order IX
Rule 4 read with Section 151 of the CPC along with an application under Section
5 of the Limitation Act, 1963 has been filed which has been rejected by the
learned Principal District Judge, Dhanbad by order dated 16.01.2023 on the
ground that the limitation has not been explained properly. He submits that this
matter was earlier posted before the co-ordinate Bench of this Court and he
relied in the case of Anwari Begum and Others v. The State of Bihar
(Now Jharkhand) and Others reported in 2011 (1) JLJR 304 wherein it
was held that if the suit is not admitted and it was dismissed for default at the
initial stage, there is no need of issuing notice upon the other side. He submits
that by order dated 03.08.2023 the co-ordinate Bench of this Court has referred
this aspect of the matter before the Division Bench which was placed before the
Division Bench and the Division Bench by order dated 27.11.2024 answered the
Reference saying that if the suit is not admitted and initially it has been
dismissed for non-prosecution, there is no need of issuing notice upon the other
side. He submits that in view of that, after the answer by the Division Bench,
this matter has been listed before this Bench. He further submits that the
learned court has not considered about the Covid-19 pandemic and the suit was
dismissed for default by order dated 13.9.2022. He further submits that the
petitioners are the daughters of the executor namely Qutubuddin Ansari and
they could not appear on the fixed date for submitting the court-fee as they are
married daughters. He submits that the petitioner no.1 was admitted in National
Highways Nursing Home from 03.05.2022 to 20.07.2022 and as such she could
not appear on 06.05.2022, 09.06.2022 and on 08.07.2022. The petitioner was
again admitted in Nichitpur Hospital and Research Centre Pvt. Ltd. From
31.07.2022 to 04.08.2022 and in view of that the petitioner could not appear
before the learned court on 23.08.2022 and on 13.09.2022 and the suit was
dismissed for default. He then submits that along with the petition filed before
the learned court, the medical certificate was also annexed. However, the
learned court has been pleased to not accept the same.
4. It is an admitted position that the said suit was dismissed for default on
the ground that within the time granted, the court-fee was not deposited and
thereafter this petition under Order IX Rule 4 read with Section 151 of the CPC
along with an application under Section 5 of the Limitation Act, 1963 has been
filed. The said petition is annexed as Annexure-2 in the C.M.P. The said petition
was also accompanied with the condonation petition of delay. The certificate of
National Highways Nursing Home and Nichitpur Hospital and Research Centre
Pvt. Ltd were also annexed therein which clearly suggest that the petitioner
no.1 was having some ailment. For some of the period, prior to 13.09.2022, the
Covid-19 pandemic was also existing. The Hon'ble Supreme Court in the suo-
motu case has extended the period of limitation arising out of any statutory
provision of any Act.
5. The Court finds that sufficient ground is made out for condonation of
delay and the learned court has wrongly not accepted the same. The provision
of C.P.C is made for doing justice as has been held by the Hon'ble Supreme
Court in the case of Chinnammal v. P. Arumugham reported in (1990) 1
SCC 513 and in paragraph no.17 of the said judgment, it has been held as
under:
"17. It is well to remember that the Code of Civil Procedure is a
body of procedural law designed to facilitate justice and it should not
be treated as an enactment providing for punishments and penalties.
The laws of procedure should be so construed as to render justice
wherever reasonably possible. It is in our opinion, not unreasonable to
demand restitution from a person who ha purchased the property in
court auction being aware of the pending appeal against the decree."
6. Admittedly, the suit was not admitted as yet and even the notices have
not been issued. In view of that, a Reference was answered by Division Bench,
there is no need of issuing notice upon the other side.
7. In view of above facts, reasons and analysis, the impugned order dated
05.04.2023 passed in Civil Misc. Appeal No.01 of 2023 is set-aside. The petition
filed by the petitioners under Order IX Rule 4 read with Section 151 of the CPC
along with an application under Section 5 of the Limitation Act, 1963 are,
hereby, allowed.
8. The Original Suit No.07 of 2021 is restored to its original file.
9. The petitioners will appear before the learned court on 17.03.2025 and
the learned court will proceed further in accordance with law.
10. C.M.P. No.713 of 2023 is allowed in the above terms and disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/
A.F.R.
