Case Note & Summary
The petitioner, heir of the original plaintiff, filed a Special Civil Application under Articles 226 and 227 of the Constitution of India challenging the order dated 23/01/2024 passed by the learned Principal Senior Civil Court, Khambhat, rejecting Civil Misc. Application No. 7 of 2023 for condonation of delay in filing an application for restoration of Regular Civil Suit No. 70 of 2007. The original suit was filed by the petitioner's father seeking declaration and permanent injunction regarding an easementary right of way over Survey Nos. 1205 and 1206 of village Vatadara. The suit was dismissed for default under Order IX Rule 8 CPC on 16.02.2018 due to the plaintiff's illness and absence. The original plaintiff expired on 24.10.2021. The petitioner claimed no knowledge of the dismissal until receiving a legal notice dated 03.09.2022 from respondent No. 2 restraining use of the right of way. The petitioner then filed the restoration application with a delay of over 4 years. The Trial Court rejected the condonation application, leading to the present petition. The High Court, after hearing both sides, found that the petitioner had shown sufficient cause for the delay, as the original plaintiff was ill, the family resided away, and the petitioner only learned of the dismissal upon receiving the legal notice. The Court held that the Trial Court's order was perverse and suffered from material irregularity, and that a liberal approach should be adopted to condone delay to allow adjudication on merits. The High Court quashed the impugned order, allowed the condonation application, and directed the Trial Court to restore the suit and proceed expeditiously.
Headnote
A) Civil Procedure - Condonation of Delay - Sufficient Cause - Order IX Rule 9, Code of Civil Procedure, 1908 - Section 5, Limitation Act, 1963 - The petitioner sought restoration of a suit dismissed for default, with a delay of over 4 years. The Trial Court rejected the condonation application. The High Court held that the explanation of the petitioner (illness of original plaintiff, residence away from court, lack of knowledge of dismissal until legal notice) constituted sufficient cause, and the delay was not intentional. The Court emphasized a liberal approach in condoning delay to decide matters on merits. (Paras 3-8) B) Constitutional Law - Jurisdiction under Article 227 - Scope of Interference - Constitution of India, 1950 - Article 227 - The High Court held that the Trial Court's order rejecting condonation was perverse and suffered from material irregularity, warranting interference under Article 227 to prevent failure of justice. (Paras 9-10)
Issue of Consideration
Whether the learned Trial Court erred in rejecting the application for condonation of delay in filing the restoration application, and whether the High Court should interfere under Article 227 of the Constitution of India.
Final Decision
The High Court allowed the petition, quashed the impugned order dated 23/01/2024, allowed Civil Misc. Application No. 7 of 2023 for condonation of delay, and directed the Trial Court to restore Regular Civil Suit No. 70 of 2007 to its original number and proceed with the suit expeditiously.
Law Points
- Sufficient cause for condonation of delay
- Liberal approach in condoning delay
- Order IX Rule 9 CPC
- Section 5 Limitation Act
- Article 227 jurisdiction
