Juggadevi (Dead), Throguh Her Legal Representatives- Hemchand Sankalecha Vs Bachchu Mistri @ Abdul Gaffar

¶1

1

CGHC010160502023

2026:CGHC:28516

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

MA No. 76 of 2023

¶7

1 - Juggadevi (Dead), Throguh Her Legal Representatives-

¶8

1(A) Hemchand Sankalecha Sankalecha S/o Late Shri Ranulal Sankalecha, Aged About 66 Years R/o Aamapara Ward, Tahsil And District Dhamtari Chhattisgarh.

¶9

1 (B) Pravin Sankalecha S/o Late Shri Ranulal Sankalecha, Aged About 56 Years R/o Sadar Bazar - Dhamtari Tahsil And District Dhamtari Chhattisgarh.

¶10

1 (C) Lalit Kumar Sankalecha S/o Late Shri Ranulal Sankalecha, Aged About 58 Years R/o Ganjpara, Balod, Tahsil And District Balod Chhattisgarh.

¶11

1 (D) Lakki Sankalecha S/o Shri Hemchand Sankalecha, Aged About 31 Years R/o Aamapara Ward, Tahsil And District Dhamtari Chhattisgarh.

¶12

1 (E) Bhaiyyu @ Darshan Sankalecha S/o Shri Pravin Sankalecha, Aged About 17 Years Minor - Through His Father -Pravin Sankalecha S/o Late Shri Ranulal Sankalecha, Aged About 56 Years, R/o- Sadar Bazar, Dhamtari Tahsil And District Dhamtari Chhattisgarh.

¶13

... Appellants/Applicants

¶14

versus

¶15

1 - Bachchu Mistri @ Abdul Gaffar S/o Abdul Kadar (Dead) Through His Legal Representative

¶16

1 (A) Mohd. Hafij @ Raja Mistri S/o Late Shri Bachchu Mistri, Aged About 52 Years R/o Risaipara Ward, Near Kodumal Sindhi Dharmashala Dhamtari, Tahsil And District Dhamtari Chhattisgarh.

¶17

... Respondent

¶18

For Appellants : Mr. Rishi Rahul Soni, Advocate For Respondent : Mr. HB Agrawal, Sr. Advocate with Ms. Preeti Yadav, Advocate

¶19

Digitally signed by BINI BINI PRADEEP PRADEEP Date: 2026.07.10 15:41:00 +0530

¶20

2

¶21

(Hon’ble Shri Justice Naresh Kumar Chandravanshi) Order on Board

¶22

09.07.2026

¶23

1. Heard.

¶24

2. The present misc. appeal has been preferred by the appellants/ plaintiffs under Order 43 Rule 01(c) of the Code of Civil Procedure, 1908, challenging the order dated 24.03.2023 passed by Upper District Judge, Dhamtari (CG) in Misc. Civil Case No.25/2017, whereby application filed by the appellants/plaintiffs under Order IX Rule 9 of the CPC has been rejected. 3 . Facts of the case, in nutshell, are that Civil Suit bearing No.182A/2008 (Smt. Jugga Devi vs. Bachchuu Mistri @ Abdul Gaffar) was listed for hearing before the Upper District Judge, Dhmatari on 09.8.2017. On the said date, neither the appellants/plaintiffs nor their counsel appeared before the Court. Consequently, the suit was dismissed for want of prosecution. Thereafter, the appellants/plaintiffs filed an application under Order IX Rule 9 CPC on 04.09.2017 seeking restoration of the suit. The said application was dismissed by the learned trial Court vide the impugned order on the ground that the cause shown by the appellants/plaintiffs for their non-appearance was contradictory. Hence, the present appeal.

¶25

4. Learned counsel for the appellants/plaintiffs submits that aforesaid civil suit was listed for hearing on 29.7.2017 and on that day an order was passed on the application filed by the plaintiffs under Section 114 read with Order 47 Rule 1 CPC. Thereafter the case was listed for hearing on 09.8.2017, but inadvertently, counsel for the plaintiffs noted the next date of hearing as 08.9.2017 in his diary instead of 09.8.2017, therefore, he could not appear before the Court for hearing on 09.8.2017. As a result, the suit came to be dismissed for want of prosecution. Learned counsel further submits that the

¶26

3

¶27

plaintiffs had applied for a certified copy of the order dated 29.07.2017 on 03.08.2017, which was made available to them on 11.08.2017. It was only upon receipt of the certified copy that the counsel for the appellants came to know that the civil suit had already been dismissed on 09.08.2017. Thereafter, an application under Order IX Rule 9 CPC for restoration of the suit was filed within the prescribed period of limitation. It is contended that the reason assigned for the non-appearance of the appellants/their counsel is bona fide and neither deliberate nor mala fide . Therefore, the impugned order suffers from perversity and illegality and is liable to be set aside. Accordingly, it is prayed that the appeal be allowed, the impugned order be set aside, and the learned Upper District Judge, Dhamtari be directed to restore Civil Suit No. 182A/2008 to its original file and number.

¶28

5. On the other hand, learned counsel for the respondent submits that no sufficient cause has been shown by the appellants, therefore, impugned order does not call for any interference of this Court. Hence, the appeal be dismissed.

¶29

6. Heard learned counsel for the parties and perused the material available on record.

¶30

7. It is not in dispute that Civil Suit No. 182A/2008 was dismissed for want of prosecution on 09.08.2017. The appellants/plaintiffs filed an application under Order IX Rule 9 of the Code of Civil Procedure on 04.09.2017, i.e., within 25 days from the date of dismissal. The cause shown for the nonappearance of the plaintiffs' counsel is that, inadvertently, the next date of hearing was wrongly noted in his diary as 08.09.2017 instead of 09.08.2017 and the counsel came to know about the dismissal of the suit only upon receiving the certified copy on 11.08.2017, thereafter the restoration application was filed within the prescribed period of limitation. All these facts

¶31

4

¶32

show the bonafideness of the plaintiffs that they want to contest the case on merits.

¶33

8. It is settled proposition of law that until delay is malafide, deliberate or ulterior motive, then the Court ought to have taken liberal view to condone the delay in filing the application.

¶34

9. In the present case, the explanation furnished by the appellants/plaintiffs for their non-appearance is found to be genuine and bona fide. The application for restoration was also filed within the prescribed period of limitation. In these circumstances, the impugned order passed by the learned Upper District Judge, Dhamtari is not sustainable in law.

¶35

10. Accordingly, this appeal is allowed. Impugned order dated 24.03.2023 passed by Upper District Judge, Dhamtari in Misc. Civil Case No.25/2017 is set aside. The learned Upper District Judge, Dhamtari is directed to restore Civil Suit No.182A/2008 to its original number and proceed with the matter in accordance with law.

¶36

11. Since the original suit pertains to the year 2008, learned counsel for both the parties are directed to instruct their respective parties to remain present before the learned Upper District Judge, Dhamtari on 31.7.2026.

¶37

12. Pending interlocutory application(s), if any also, stands disposed of.

¶38

Sd/-

¶39

(Naresh Kumar Chandravanshi) Judge

¶40

Bini

Juggadevi (Dead), Throguh Her Legal Representatives- Hemchand Sankalecha v. Bachchu Mistri @ Abdul Gaffar

Case brief

What is this about?

What did the court decide?

Juggadevi (Dead), Throguh Her Legal Representatives- Hemchand Sankalecha v. Bachchu Mistri @ Abdul Gaffar

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Leela Namdev Vs Amit Namdev

Narendra Kumar Rautkar Vs State of Chhattisgarh

S.B.I. General Insurance Company Limited Vs Smt. Baisakhin Bai Markam

Surekha Barapatre Vs State of Chhattisgarh

Adhin Ram Sinha Vs Sahni Ram Sahu

Smt. Manorama Patel Vs Shri Bhukhsay