Madhya Pradesh High Court
Mohd Ismail S/O Late Mo. Ibrahim Dead ... vs Mo. Yakub on 5 May, 2025
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:20909
1 MP-87-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 5 th OF MAY, 2025
MISC. PETITION No. 87 of 2025
MOHD ISMAIL S/O LATE MO. IBRAHIM DEAD THROUGH LRS MO.
YUSUF ANSARI AND OTHERS
Versus
MO. YAKUB AND OTHERS
Appearance:
Shri Sourabh K. Soni - Advocate for the petitioners.
ORDER
This petition under Article 227 of Constitution of India has been filed
seeking following relief :-
"The petitioner humbly and respectfully prays that this Hon. Court may
be pleased to set aside the order dated 06.11.2024 (Annexure P/3) and restore
Civil Suit (Mo. Ismail Vs. Mo. Yakub & Ors. RCS -14A/2014) before the
Civil Judge, Class II, Ashta, District Sehore and direct the Court below to
decide the suit filed by the petitioner on its own merits.
Any other order or orders that this Hon. Court deems fit and proper in
the facts and circumstances of the case may also kindly be passed."
2. It is submitted that Mohd. Ismail had filed a Civil Suit bearing RCS
No.14A/2014 (Mohd. Ismail Vs. Mohd. Yakub and others) before the Court
of Civil Judge Class II, Ashta, District Sehore. The case was fixed for
hearing on 22.7.2015, but none appeared for the plaintiff, hence, the suit
was dismissed in default. Almost after six years of dismissal of Civil Suit, on
NEUTRAL CITATION NO. 2025:MPHC-JBP:20909
2 MP-87-2025
3.8.2021 Mohd. Ismail filed an application under Order 9 Rule 9 CPC before
the trial Court seeking restoration of the suit on the ground that he is old and
infirm and had no knowledge about dismissal of the suit. He was told by his
counsel that whenever his presence would be required, he will inform and
call him. Therefore, it was prayed that Civil Suit No.RCS 14A/2014 be
restored to its original number. The aforesaid application was dismissed by
the 1st Civil Judge, Junior Division, Ashta, District Sehore observing that no
sufficient ground has been shown for delay of six years in filing restoration
application. Against the impugned order dated 14.1.2022 passed by Civil
Judge Junior Division, Miscellaneous Appeal was preferred before the 2nd
District Judge, Ashta but the 2nd District Judge, Ashta, District Sehore vide
its judgment dated 6.11.2024 passed in MCA No.10/2022 (Mohd. Ismail Vs.
Mohd Yakub and others) upheld the order passed by Civil Judge, Junior
Division, Ashta, District Sehore and dismissed the appeal.
3. Counsel for the petitioner submits that plaintiff was suffering from
cancer and on account of his illness, he could not appear before the Court
below on date fixed for hearing. When he came to know about dismissal of
suit, he collected the documents, appointed new counsel and filed
restoration application. It is submitted that learned Courts below have
committed error by not restoring the suit to its original number. Therefore, it
is prayed that impugned orders passed by the Courts below be set aside and
trial Court be directed to restore the Suit No.14A/2014 to its original
number.
4. I have gone through the material on record and application filed
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3 MP-87-2025
before the learned trial Court.
5. On perusal of the material and application, it reveals that in it no
averments have been made and no sufficient reasons have been disclosed for
filing restoration application after a period of six years or more. No ground
is taken as to why restoration application could not be filed within 30 days of
the dismissal of the suit. No medical documents were produced before the
trial Court to display that applicant was suffering from any disease. As no
sufficient ground was made and proved before the trial Court, the trial Court
has not committed any error in dismissing the restoration application. It was
incumbent on the part of plaintiff to show sufficient cause for his absence on
the date when suit was dismissed in default and delay of long six years in
filing restoration application. It was obligatory on the part of the petitioner
to show sufficient cause for a delay of six years which is an inordinate delay
in filing restoration application.
6. Therefore on scanning of the orders passed by the trial Court as
well as appellate Court, no illegality, impropriety or incorrectness is visible
in the impugned orders.
7. Consequently, this petition being devoid of merits is dismissed.
(DINESH KUMAR PALIWAL)
JUDGE
mrs. mishra
