Jharkhand High Court
Upendra Prasad Gupta vs Satendra Kumar Gupta on 7 May, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:13727
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 91 of 2025
Upendra Prasad Gupta, aged about 54 years, son of Late Ayodhya
Prasad, resident of Village- Semari, P.O. & P.S. Patan, District- Palamau
... Petitioner
-Versus-
1. Satendra Kumar Gupta
2. Jitendra Kumar, both sons of Late Ayodhya Prasad, both are resident of
Village- Semari, P.O. & P.S. Patan, District- Palamau
... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Anand Kumar Pandey, Advocate
For the Opposite Parties : Mr. Baban Prasad, Advocate
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08/07.05.2025 Heard Mr. Anand Kumar Pandey, learned counsel appearing for the
petitioner and Mr. Baban Prasad, learned counsel appearing for opposite party
nos. 1 and 2.
2. This petition has been filed under Article 227 of the Constitution of
India for setting aside the order dated 08.07.2024 passed by the learned Civil
Judge (Sr. Division)-III, Palamau in Civil Misc. Case No.10 of 2024, whereby,
the restoration petition dated 20.02.2024 filed by the plaintiffs/opposite
parties under Order IX Rule 4 read with Section 151 of the CPC for restoration
of Original Suit No.68 of 2017 has been allowed without providing any
opportunity to the petitioner.
3. Mr. Anand Kumar Pandey, learned counsel appearing for the petitioner
submits that the plaintiffs/opposite parties instituted a suit being Original Suit
No.68 of 2017 for declaration that three sale deeds do not contain true
expression of conscious mind of Late Ayodhya Prasad and the said sale deeds
were obtained by playing fraud and the same did not convey right, title,
interest and possession upon the defendants, which are liable to be cancelled
under Section 31 of Specific Relief Act and also for permanent injunction. He
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further submits that after receiving summons, the petitioner/defendant has
appeared in the said suit and filed written statement and contested the suit
on several grounds. He also submits that after framing issues, the suit was
fixed for evidence, however, despite several adjournments the plaintiffs/
opposite parties did not take any step and ultimately vide order dated
20.03.2023, the said suit was dismissed under Order IX Rule 3 read with
Order XVII Rule 2 of the CPC. He then submits that on 20.02.2024, the
plaintiffs/opposite parties filed a restoration petition under Order IX Rule 4
read with Section 151 of the CPC for restoration of the said suit, which was
registered as Civil Misc. Case No.10 of 2024 and vide order dated 08.07.2024,
the learned Court has been pleased to restore the said original suit to its
original file. He submits that this exercise has been done by the learned Court
without noticing the defendant and even copy of the restoration petition was
not served upon him. He submits that in view of that, the learned Court has
wrongly passed the said order and, as such, the impugned order may kindly
be set-aside.
4. Mr. Baban Prasad, learned counsel appearing for opposite party nos. 1
and 2 submits that it is within the domain of the learned Court to satisfy to
restore the said suit and no notice is required to be issued. To buttress this
argument, he relied upon the judgment passed by a Coordinate Bench of this
Court in the case of Anwari Begum & others v. State of Bihar (Now
Jharkhand) and others, reported in 2011 (2) JCR 215 (Jhr). Relying on
the above judgment, he submits that no notice is required to be issued. On
the same line, he further relied upon the judgment passed by the Orissa High
Court in the case of Binod Kumar Agarwala and another v. Mst.
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Satyabhama Debi, reported in AIR 1988 Orissa 44 as well as the
judgment passed by the Division Bench of Allahabad High Court in the case
of Laljit Singh and others v. Pyarelal and others, reported in AIR 1956
Allahabad 714. Relying on the above judgments, he submits that the
learned Court has rightly passed the order and, as such, this petition may
kindly be dismissed.
5. In view of the above submissions of the learned counsel for the parties,
the Court has gone through the materials on record and finds that it is an
admitted position that the Original Suit No.68 of 2017 was instituted by the
plaintiffs/opposite parties, which was fixed for evidence after framing issues,
however, opposite parties did not take any steps despite several
adjournments and, as such, the said suit was dismissed vide order dated
20.03.2023. Thereafter, the restoration petition being Civil Misc. Case No.10
of 2024 was filed by the opposite parties under Order IX Rule 4 read with
Section 151 of the CPC and the learned Court has been pleased to allow the
said restoration petition vide order dated 08.07.2024 without issuing notice
to the petitioner/defendant. It is not denied by the learned counsel for the
opposite parties that the copy of the said restoration petition was not served
upon the defendant and it has also not been denied that the notice was not
issued to the defendant. Thus, it is an admitted position that notice upon
defendant/ petitioner has not been issued in the said restoration petition.
6. The question remains as to whether notice in such exercise is
necessary in light of Order IX Rule 4 of the CPC or not? Admittedly, the
defendant has appeared and filed his written statement and in spite of that,
no notice has been issued upon him while restoring the said original suit.
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7. For the proposition that restoring a suit, no notice is required, reliance
has been placed by the learned counsel for the opposite party nos. 1 and 2
in the cases of Anwari Begum & others v. State of Bihar (Now
Jharkhand) and others, Binod Kumar Agarwala and another v. Mst.
Satyabhama Debi and Laljit Singh and others v. Pyarelal and others
(supra). In those cases, it was held that when the suit is dismissed under
Order IX Rule 3 of the CPC for non-appearance of both the parties, the Court
has jurisdictional power to restore the suit if sufficient case is shown for non-
appearance. As may be noted, Order IX Rule 3 of the CPC comes into place
only when both the parties are absent. In such a case subject to limitation,
the plaintiff can institute a fresh suit or apply for setting aside by showing
sufficient cause for non-appearance. The facts therein would show that the
suit was kept for evidence of the plaintiff. To a similar effect is the judgment
in the case of Babu v. Dewan Singh and others, reported in AIR 1952
All 749. Again it has been pointed out that it is on the case when the suit is
dismissed under Order IX Rule 3 of the CPC when both the parties were
absent. In the case of R.R. Khatik & others v. Sahadeo Gopala
Koshti & others, reported in AIR (32) 1945 Nagpur 185, the learned
Single Judge of Nagpur High Court has held that if a suit is restored under
Order IX, Rule 4 without notice to the defendant, the same would be bad
as defendant must be given notice of the hearing of the suit. Similar view
is taken by a Division Bench of the Allahabad High Court in the case of
Long Life Carpet Industries v. Smt. Kesar Jahan, reported in AIR 1988
All. 55 when the Division Bench noted that notice must be given to the
defendants.
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8. The provisions of Rule 4 of Order IX of the CPC would be attracted in
a case where suit is dismissed under Rule 2 or Rule 3. From careful perusal
of the order dismissing the suit for non-prosecution, it is abundantly clear that
the defendant was present when such order was passed by way of filing
representation. The Rule 2 or 3 has no application in the instant case.
Therefore, the conclusion reached by the learned trial Court that where a suit
is dismissed under Rule 2 or Rule 3, it can be restored and Order IX Rule 4
of the CPC does not require hearing the other side in the proceedings of
present nature, is misconceived. When application is filed for restoration of
suit by the original plaintiffs for restoration of the suit, it was necessary for
the concerned Court to issue notices to the defendants/non applicants therein
and after hearing them to pass necessary orders on the application for
restoration petition as representation on behalf of the defendant was there
before the learned Court and it has not been denied by the learned counsel
for the opposite parties/plaintiffs. In these backgrounds, the judgments relied
by the learned counsel for the opposite parties are distinguishable.
Further, the judgment of the Coordinate Bench of this Court is per inquirium
in light of the judgment of the Division Bench of Allahabad High Court,
as noted hereinabove and, as such, those judgments relied by the
learned counsel for the opposite parties are not helping the opposite
parties/plaintiffs.
9. In view of the above facts, reasons and analysis, this C.M.P. is
succeeded. Accordingly, the order dated 08.07.2024 passed by the learned
Civil Judge (Sr. Division)-III, Palamau in Civil Misc. Case No.10 of 2024 arising
out of Original Suit No.68 of 2017 is, hereby, set-aside.
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10. The petition filed for restoration is restored to the file of the learned
Court, who will decide the same and pass a fresh order, in accordance with
law after providing opportunity of hearing to all the parties.
11. The petitioner and opposite parties appearing herein in the present
C.M.P. shall remain present before the learned Court on 16.06.2025.
12. In view of this order, no fresh notice is required to be issued upon the
petitioner/defendant and opposite parties/plaintiffs.
13. Accordingly, this petition is allowed in above terms and disposed of.
14. Interim order, if any granted by this Court, is vacated.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
