Lakhindra Mahto vs Smt. Pachi Devi
2025 Latest Caselaw 267 Jhar

Jharkhand High Court

Lakhindra Mahto vs Smt. Pachi Devi on 8 May, 2025

                                                    2025:JHHC:14084

IN THE HIGH COURT OF JHARKHAND AT RANCHI
         Civil Revision No. 36 of 2009

1. Lakhindra Mahto, Son of Late Meghnath Mahto.
2. Basant Kumar Mahto, Son of Late Meghnath Mahto.
   Both residents of Village - Tati, Post Office and Police Station -
   Tatisilwai, District - Ranchi (Jharkhand).
3. Sita Devi, Wife of Suraj Kumar Mahto and daughter of Late
   Meghnath Mahto, Resident of Koinar-toli, Village-Lali, P.O. -
   Lali, P.S. - Namkum, District - Ranchi (Jharkhand).
                           ..... Petitioners /Defendants
                           Versus
1. Smt. Pachi Devi, Wife of Late Jhalku Mahto.
2. Lakhpati Kumar, Daughter of Late Jhalku Mahto.
   Both Resident of Village - Tati, Post Office and Police Station -
   Tatisilwai, District - Ranchi, Jharkhand.
                           ..... Opp. Parties/ Plaintiffs
3. Sanjoti Devi, Wife of Late Ganesh Mahto, resident of Village -
   Tati, Post Office and Police Station - Tatisilwai, District - Ranchi.
4. Smt. Pushlata Devi, Wife of Jaleshwar Mahto. Daughter of Late
   Jhalku Mahto, Resident of Village - Pirtol, Post Office and Police
   Station - Sadar, District - Ranchi.
5. Smt. Dharamshila Devi, Wife of Late Gopal Mahto, Daughter of
   Late Jhalka Mahto, Resident of Village - Kadma, Post Office and
   Police Station - Kanke, District - Ranchi.
6. Smt. Reshmi Devi, Wife of Sri Raj Kishore Mahto, R/O Late
   Jhalku Mahto, Resident of Village - Masu, Police Station and Post
   Office - Angara, District - Ranchi.
7. Smt. Sampati Devi, Wife of Sri Jagdish Mahto, Daughter of Late
   Jhalku Mahto, Resident of Village - Pirtol, Post Office and Police
   Station - Sadar, District - Ranchi.
                           ..... Proforma Opp. Parties
                            ---------
For the Petitioners                : Mr. Jai Prakash, Sr. Advocate.
                                     Mr. Yogesh Modi, Advocate.
For the Opp. Parties               : Mr. K.K. Ambastha, Advocate.
                           ---------
                           PRESENT
      HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                           --------
                         JUDGMENT

th Dated: 8 May, 2025

1. Heard learned counsel for the petitioners as well as learned counsel for the opposite parties.

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2. The present civil revision is directed against the order dated 17.09.2009 passed by Additional Munsif-I, Ranchi in Misc. Case No. 02 of 2008, arising out of Title Suit No. 217 of 2006, whereby and whereunder an application under Order IX Rule 9 read with Section 151 C.P.C. filed by the plaintiffs / opposite parties has been allowed on contest subject to payment of cost of Rs. 500/- to be paid to the defendants.

3. Learned counsel for the petitioners assailing the impugned order has contended that Title Suit No. 217 of 2006 was dismissed for non-filing of requisite for issuance of summons against the defendants. Therefore, the restoration application might have been filed by the plaintiff / opposite party under Order IX Rule 4 of C.P.C. instead of an application under Order IX Rule 9 C.P.C.

4. It is further submitted that admittedly the application for restoration of the suit was time barred inasmuch as the suit was dismissed on 06.10.2007 and the restoration application was filed on 10.03.2008 along with an application under Section 5 of the Indian Limitation Act.

5. It is further submitted that since the restoration application was time barred and the learned court below did not condone the delay by passing specific order with reasons as to sufficient cause preventing the plaintiffs in filing the restoration application within time, rather has passed a non-speaking order and restored the suit to its original number. Therefore, the impugned order is not legally sustainable and fit to be set aside. The matter requires to be remitted back for fresh decision on the restoration application.

6. Learned counsel for the petitioner has placed reliance upon the reported judgment passed in the case of Ram Prakash Vs. Deputy Director of Consolidation, Hardoi and Others reported in 2022 SCC OnLine All 107.

7. On the other hand, learned counsel for the opposite parties has

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vehemently refuted the aforesaid contentions raised on behalf of the petitioners and submitted that the learned court below has considered the averments made in the petition filed by plaintiff along with reasons for delay in filing the restoration application as well as the petition for condonation of delay filed under Section 5 of Limitation Act.

8. It is further submitted that the petitioners / defendants were also provided an opportunity of hearing although he was not required to be heard because the suit was dismissed under Order IX Rule 2 of the C.P.C. and the restoration application has to be filed under Order IX Rule 4 C.P.C., wherein no notice is required to be sent to the defendants. The learned court below after affording sufficient opportunity of hearing to the defendants, has passed a reasoned order imposing cost of Rs. 500/- on the plaintiffs and restored the suit to its original number, which suffers from no jurisdictional error.

9. In the above-mentioned circumstances, mere omission to mention in the impugned order that the delay is condoned, itself has no legal consequences and cannot be interpreted otherwise. As such, there is no illegality in the impugned order, calling for any interference. This revision is devoid of merits and fit to be dismissed.

10. Learned counsel for the opposite party has placed reliance upon judgment passed in the case of Dwarika Prasad (D) through LRs. Vs. Prithvi Raj Singh reported in 2024 SCC OnLine SC 3828 and in the case of Davinder Pal Sehgal & Another Vs. M/s Partap Steel Rolling Mills Pvt. Ltd. reported in (2002) 3 SCC 156.

11. I have gone through the impugned order and the citations relied upon in the light of rival submissions of the parties.

12. The essence of the matter is that the original suit was dismissed for non-filing the requisite for issuance of summons to the defendants. Admittedly the application for restoration has to be filed under Order IX Rule 4 of C.P.C., but it was filed under Order IX Rule 9 C.P.C. and notice was also issued to the defendants. It transpires from perusal of

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the impugned order that in the submission of plaintiff, it has been explained that the plaintiff had no knowledge about the dismissal of the suit. She is a rustic illiterate lady. She could not approach to her Advocate. She came to Ranchi on 10.03.2008 and informed by her lawyer about dismissal of the suit and immediately filed the restoration application.

13. The defendants / petitioners have also argued that the petition is not maintainable as it is barred by limitation. No other substantial opposition was raised by the defendants. It also transpires that the order for restoration of original suit was passed subject to payment of Rs. 500/- as cost to the defendants. Therefore, the impugned order itself indicates that the learned trial court has condoned the delay and passed the order on merits after hearing the parties. A mere lacuna in the order about any observation regarding condonation of delay in specific terms does not affect the essence of the order requiring any interference by way of revision.

14. In view of the aforesaid discussion and reasons, I do not find any merit in this Civil Revision, accordingly it stands dismissed.

15. Let a copy of this order along with trial court record be sent to the learned court below immediately for information and needful.

(Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated : 08.05.2025 Sunil/NAFR