Case Note & Summary
The present Second Appeal was filed under Section 100 of the Code of Civil Procedure, 1908 by the legal heirs of the deceased original plaintiff, Piriyabhai Dediyabhai, against the judgment and decree dated 17.11.2025 passed by the learned 11th Additional District Judge, Surat in Regular Civil Appeal No.80 of 2020. The appellate court had dismissed the appeal and confirmed the order dated 26.02.2020 passed by the learned Principal Civil Judge, Mangrol, Surat in CMA No.1 of 2019, which rejected the application for condonation of delay and restoration of suit. The original plaintiff had filed Regular Civil Suit No.340 of 2000 seeking a 1/3 share in land admeasuring about 6 acre, 24 Guntha in Survey No.198 of Mauje Vadgam, Taluka Umarpada (Mangrol), District Surat, and for partition and possession. The suit was dismissed for default under Order 9 of the Code on 13.01.2009. The original plaintiff expired on 18.05.2009. His heirs filed an application under Order 9 Rule 9 of the Code for restoration of the suit along with an application for condonation of delay of 10 years, 2 months and 6 days. The trial court rejected the application on 26.02.2020, and the appellate court confirmed on 17.11.2025. Aggrieved, the appellants filed the present second appeal. The learned advocate for the appellants contended that the suit was for partition of ancestral property and that the delay was due to the death of the original plaintiff and lack of knowledge of the proceedings. However, the High Court noted that the appellants had not placed on record any material to show that the delay was sufficiently explained. The court observed that the concurrent findings of the courts below did not give rise to any substantial question of law. The court held that the second appeal under Section 100 CPC cannot be entertained unless a substantial question of law is involved, and in the present case, no such question arose. Accordingly, the second appeal was dismissed. The court also disposed of the connected civil application for stay.
Headnote
A) Civil Procedure - Condonation of Delay - Restoration of Suit - Order 9 Rule 9, Section 100 Code of Civil Procedure, 1908 - The appellants sought restoration of a suit dismissed for default after a delay of 10 years, 2 months and 6 days. The trial court rejected the condonation application, and the appellate court confirmed. The High Court held that no substantial question of law arose as the delay was not sufficiently explained. (Paras 1-6) B) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court reiterated that the existence of a substantial question of law is a condition precedent for entertaining a second appeal. The concurrent findings of fact by the courts below regarding lack of sufficient cause for delay did not give rise to any substantial question of law. (Paras 5-6)
Issue of Consideration
Whether the impugned judgment and order passed by the learned Appellate Court dismissing the appeal and confirming the rejection of the application for condonation of delay and restoration of suit suffers from any substantial question of law under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The Second Appeal is dismissed. The connected Civil Application for stay also stands disposed of.
Law Points
- Condonation of delay
- Restoration of suit
- Order 9 Rule 9 CPC
- Section 100 CPC
- Substantial question of law
- Sufficient cause
