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Judgment
Ajay Kumar Gupta, J.:-
By filing the instant application under Article 227 of the Constitution of India, the plaintiff/petitioner has challenged the order being no. 91 dated 17.11.2025 passed by the Learned Civil Judge (Senior Division), 2nd Court at Contai, District- Purba Medinipur in J. Misc. Case No. 10 of 2020.
By the said impugned order, the Trial Court condoned the delay relying on the grounds shown in the application, and restored the Judicial Misc. case being No. 01/2013, by allowing the application filed under Order IX Rule 9 on contest.
The brief facts of the case are that the petitioner/plaintiff had filed a suit for declaration of title and permanent injunction before the Learned Civil Judge (Junior Division), 1st Additional Court at Contai, District – Purba Medinipur, being Title Suit No. 189 of 2007 against the predecessor-in-interest of the Opposite parties.
The predecessor-in-interest of the opposite parties herein, namely, Sashi Bhusan Panda, was the original defendant in the suit and contested the suit by filing a written statement-cum-counter claim, thereby denying the material allegations contained therein.
The parties led their respective evidence. After hearing the parties, the learned Trial Judge, by a judgment and decree dated 24th June, 2011 was pleased to decree the said suit on contest in favour of the petitioner/plaintiff and dismiss the counterclaim filed by Sashi Bhusan Panda.
Being aggrieved by and dissatisfied with the judgment and decree dated 24th June, 2011, Sashi Bhushan Panda had filed a Title Appeal being No. 31 of 2011 before the Learned Civil Judge (Senior Division), 1st Court at Contai, District- Purba Medinipur. The said appeal was transferred to the Court of the Learned Civil Judge (Senior Division), 2nd Court at Contai for disposal, and the same was renumbered as Title Appeal No. 4 of 2012.
The learned Appellate Court, by order No. 22 dated 05.01.2013, was pleased to dismiss the same for non-prosecution since the appellant did not take steps in the appeal on several occasions.
Late Sashi Bhusan Panda filed an application under Order 41 Rule 19 of the CPC for restoration and readmission of the said appeal. The said application was registered as J. Misc. Case No. 1 of 2013. The petitioner contested the said application by filing a written objection, thereby denying the material contentions therein. The Learned Appellate Court, vide order No. 62 dated 27.01.2015, ultimately dismissed the same for default.
The opposite parties herein, being the legal heirs and representatives, had filed an application under Order IX Rule 9 read with Section 151 of the CPC on 13th October, 2020 along with an application under Section 5 of the Limitation Act, inter alia, praying for restoration of J. Misc. Case No. 1 of 2013. The said application was registered as J. Misc. Case No. 10 of 2020.
After hearing the parties, the learned Appellate Court was pleased to allow the said application by Order No. 91 dated 17.11.2025, holding that sufficient and bona fide cause has been shown by the applicants in filing the application under Order IX Rule 9 of CPC after condoning the delay of almost 5 years.
Learned counsel appearing on behalf of the petitioner submitted that the Trial Court, while condoning the delay, did not consider the huge delay in filing the application for restoration at all and acted illegally in exercising its jurisdiction. The opposite parties did not even specify the actual number of days of delay and further suppressed the material facts as regards the knowledge of the pending suit and its dismissal; rather, the opposite parties committed fraud and misrepresented the facts before the Appellate Court. They knew about the dismissal of the Misc. case since 2020.
It was further contended that the learned Appellate Court failed to consider that sufficient explanation was not offered by the opposite parties for such huge delay, and surreptitiously allowed the application, holding therein that the procedural laws are meant to advance the cause of justice and the matters should, as far as possible, be decided on merits rather than dismissed on technical grounds and further observed sufficient causes had been shown without any discussion or assigning reasons. Therefore, the application for delay of more than 5 years in filing the application under Order IX Rule 9 and suppression of facts is required to be dismissed with exemplary costs.
Learned Counsel has placed reliance on the decision of the Supreme Court in the case of H. Guruswamy & Ors. v. A Krishnaiah1 stressing the fact that the Court must consider the overall conduct and surrounding facts of the litigant seeking relief after delay.
Learned counsel appearing on behalf of the opposite party no. 3, on the other hand, vehemently objected to the prayer for setting aside the impugned order and submitted that the opposite party had explained sufficient cause of delay in filing the application. The question of suppression of facts does not arise at all in a dismissed-for-default case, since it was not decided on merits. Every case must be decided on its own merits. The Hon’ble Supreme Court has, time and again, observed that substantial justice should be preferred over technical justice. The opposite party did not suppress the date when they came to know about the dismissal.
Learned counsel further has placed reliance on a decision of the Supreme Court in the case of Ghanshyam Das Gupta v. Makhan Lal2 to indicate that the Hon’ble Division Bench restored an appeal decided on merits in the appellant's absence under Order 41 Rule 17(1) CPC. Therefore, the Learned Appellate Court has rightly allowed restoration of the application filed by the opposite party. Therefore, there is no need to set aside the impugned order.
Having heard the learned counsels for the respective parties and having gone through the materials on record, this Court finds that, admittedly, Title appeal being Title appeal no. 4 of 2012 filed by the Sashi Bhusan Panda, since deceased, was dismissed for non-prosecution since the appellant did not take steps in the appeal on several occasions vide order no. 22 dated 05.01.2013.
During his lifetime, Sashi Bhusan Panda filed an application for restoration under Order 41 Rule 19 of the Civil Procedure Code (in short CPC). The application was registered as J. Misc. 1 of 2013, but it was also dismissed for default vide order dated 27.01.2015, as no steps were taken by the appellant. He expired on 9th December, 2014. When it came to the knowledge of the Opposite Party Nos. 1 to 3, being the legal heirs and representatives, they filed an application for restoration under Order IX Rule 9 of the CPC read with section 151 of the CPC and section 5 of the Limitation Act, 1963 without indicating particular dates of delay. The application filed on 13th October,2020 was registered as J. Misc. Case No. 10 of 2020.
Considering the case of the parties, this court has to be decided on the following issues involved in the present revisional application as follows: -
Whether the opposite parties have explained and proved the cause of the delay in filing the application for restoration under Order IX Rule 9 of the CPC?
Whether the opposite parties have suppressed the material facts to obtain reliefs as prayed for?
Upon careful perusal of the application for condonation of delay, this Court is of the view that the opposite parties have not disclosed the actual number of days of delay in filing the application for restoration of the J. Misc. Case No. 1 of 2013. No sufficient explanation was averred in the application. They also suppressed the material fact that they were unaware of the proceedings and its dismissal. The Opposite party clearly specified in paragraph No. 3 that they came to know about the fate of the Appeal on 11.10.2020 whereas the petitioner herein drew the attention of this court to the fact that prior to filing of the applications by the opposite parties, they were very well aware of the proceeding initiated by the petitioner under Section 144 of the Cr.P.C. being Misc Case 436 of 2015 on 28.10.2015 against the opposite parties for disturbing the possession of the petitioner. The opposite parties had duly contested the proceedings before the Learned Executive Magistrate. However, this information has been suppressed before the Appellate Court.
The Opposite Parties further suppressed the fact that they were very well aware of the proceeding pending before the Hon’ble High Court at Calcutta. The Opposite Parties had been arrayed as respondents in a Writ petition being W.P. 30941 (W) of 2017, filed by the Petitioner, when the police personnel had not rendered police assistance to him.
The Opposite Parties herein had clear knowledge about the dismissal of the application as far back in the year 2015 itself; however, they filed the restoration application in the year 2020, suppressing the actual facts, committing serious fraud upon the Trial Court.
It may also be apposite to examine the applicability of the judgment relied upon by the Petitioner here. The decision in H. Guruswamy & Ors. v. A. Krishnaiah (Supra) relied upon by learned counsel for the petitioner, directly bears upon the exercise of discretion under Section 5 of the Limitation Act and reiterates that concepts such as a "liberal" or "justice-oriented" approach cannot be employed to frustrate the substantial law of limitation, and that a court must first ascertain the bona fides of the explanation offered before bringing the merits of the underlying matter into aid. This Court finds the said decision squarely applicable to the facts of the present case.
It is equally well settled that "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963 cannot be construed so liberally as to reward a party guilty of negligence, inaction, or lack of bona fides. The applicant must satisfy the court that he was prevented by a cause beyond his control from prosecuting the proceeding within time; a mechanical or unreasoned condonation defeats the very object of the law of limitation, as held in Basawaraj & Anr. v. Special Land Acquisition Officer3. Tested on this touchstone, the reasoning in the order impugned falls short of the standard the law requires.
The learned Appellate Court has failed to assess these facts while considering the application filed by the opposite parties. It further failed to assign any reasons for condoning a delay of almost five years in filing the restoration application under Order IX Rule 9 of the Code of Civil Procedure. The Appellate Court ought to have taken all these facts into consideration; had it done so genuinely and in accordance with law, the application for condonation of delay would have been dismissed. While allowing an application for condonation of inordinate delay, a court must exercise its discretionary power sparingly and judiciously, supported by cogent and valid reasons, which is conspicuously absent in the present case.
The opposite party did not approach the Appellate Court with clean hands and suppressed the fact of knowledge of dismissal, although they participated in the proceedings initiated against them before the learned Executive Magistrate and the Hon’ble High Court. In both proceedings, the petitioner has disclosed the appeal and thereafter the Judicial Misc. Case. Although they disclosed that they came to know about the dismissal on 11.10.2020, it is apparently false and manufactured. Accordingly, on the second issue framed above, this Court holds that the opposite parties have failed to approach the court below with clean hands and have suppressed material facts touching their knowledge of the dismissal of J. Misc. Case No. 1 of 2013, which disentitles them to the discretionary relief of condonation of delay.
In view of the above discussion, no case for condoning the delay of almost 5 years is made out. Accordingly, the application for condonation of delay in filing the restoration application is liable to be dismissed and consequently restoration of Misc. Case 10 of 2020 is also set aside.
Accordingly, C.O. No. 167 of 2026 is, thus, allowed without order as to costs. Connected applications, if any, are also, thus, disposed of.
Interim order, if any, stands vacated.
The order impugned being No. 91 dated 17.11.2025 passed by the Learned Civil Judge (Senior Division), 2nd Court at Contai, District-Purba Medinipur in J. Misc. Case No. 10 of 2020, is therefore set aside.
Let a copy of this Judgment be sent to the Learned Court below for information.
All parties will act on the server copies of this Judgment duly downloaded from the official website of this Hon’ble High Court.
Urgent photostat certified copy of this Judgment, if applied for, is to be given as expeditiously to the parties on compliance of all legal and necessary formalities.