Dismissed

Vidya Pandey v. Vikash Kumat Tiwari And Ors.

Jharkhand HC11 May 2018C.R./29/2016

Case brief

AI extract

What is this about?

This High Court dismissed a civil revision challenging the restoration of a title suit dismissed for plaintiff's absence. The Court upposed the trial court's finding of sufficient cause (illness) despite lack of evidentiary corroboration but modified the cost award from Rs. 4,000 to Rs. 10,000 and directed speedy disposal.

What did the court decide?

Revision dismissed; impugned order modified to increase costs to Rs. 10,000 and directed speedy disposal of suit.

Vidya Pandey Vs Vikash Kumat Tiwari And Ors. — Execution and Attachment | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Revision No.29 of 2016

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Vidya Pandey son of Late Ram Bilash Pandey, resident of village Tirwa, P.O. Kajipakri, P.S. Manatu, District Palamau (Jharkhand) ….. Petitioner

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Versus

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1. Vikash Kumar Tiwari son of Late Rajeshwar Tiwari, resident of village Baralota, P.O. & P.S. Daltonganj, District Palamau (Jharkhand)

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2. Lalita Devi wife of Basistha Narayan Tiwari and daughter of Late Rajeshwar Tiwari, resident of village Pahari, P.O. & P.S. Lesliganj, District Palamau

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3. Krishna Bala Devi wife of Vijay Kumar Pandey and daughter of Late Rajeshwar Tiwari, resident of Mohalla Hamidganj, P.O. & P.S. Daltonganj, District Palamau ….. Opp. Parties

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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA

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--------- For the Petitioner : Mr. Kundan Kr. Ambastha, Advocate For the O.Ps. : Absent ---------

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06/Dated: 11th May, 2018

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1. This revision is directed against the order dated 10.03.2016, passed by the Civil Judge – II, Palamau at Daltonganj in Misc. Case No.12 of 2011, whereby an application under Order IX Rule 4 read with Section 151 of the Code of Civil Procedure, for restoration of Title Suit No.28 of 2007, was allowed.

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2. Learned counsel for the petitioner has assailed the impugned order on the ground that the court below has committed manifest error in not appreciating and considering the fact that plaintiff did not appear on the date fixed and the trial court had rightly dismissed the suit by order dated 30.08.2010. It is submitted that the plaintiff's plea that he was suffering from illness due to which he could not prosecute the case is false because he did not examine the doctor who had issued the medical certificate and the court below has committed a manifest error in not appreciating this aspect that the plaintiff has produced a false and bogus medical certificate

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3. On repeated calls, none appears on behalf of the opposite parties.

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4. Heard. It transpires that the plaintiff (O.P in the present revision) had instituted Title Suit. No.28 of 2007 against the petitioners (defendants). The aforesaid suit was dismissed by the trial court vide order dated 30.08.2010 for non-compliance of previous order. The O.P. (Plaintiff) filed the application under Order IX Rule 4 read with Section 151 of the Code of Civil Procedure along with an application under Section 5 of the Limitation Act, for condonation of delay in filing the restoration application. Both the parties had appeared and adduced the evidence. The court below has exhaustively considered the evidence of both the parties and ordered for restoration of T.S. No.28 of 2007 subject to payment of cost of Rs.4000/-

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It is well settled proposition that the word “sufficient cause” appearing in Rule 4 of Order IX, Civil Procedure Code, should be liberally construed and interpreted with an object and purpose to do substantial justice when no negligence nor inaction nor want of bonafide is imputable to the party and not to the cause of technicalities. “Sufficient cause” must be cause which is beyond the control of the party and will depend upon the facts and circumstances of a particular case. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse.

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In this case reason for absence is 'illness' of the plaintiff. Merely because the doctor has not been examined, it should not lead to an inference that the plaintiff's plea is false especially when evidence has been adduced by the parties.

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On perusal of the impugned order it is evident that the trial court has recorded its findings on the basis of the evidence on record that the plaintiff's absence was due to circumstances beyond his control, therefore, sufficient cause has been made out accordingly order for restoration

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of the suit with cost to be paid by plaintiff for the inconvenience caused to defendants has been passed. In view of the discussions and reasons assigned, the impugned order does not merit any interference by this Court.

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5. Consequently, the revision is, hereby, dismissed. However, the impugned order dated 10.03.2016, is modified to the extent that the plaintiff shall pay a cost of Rs.10,000/- (Rupees ten thousand) instead of Rs.4,000/- to the defendant (petitioner) in the court below. The court below shall ensure that no unnecessary adjournment is sought for or granted and shall dispose off the suit at the earliest from the date of receipt or communication of a copy of this order.

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(AMITAV K. GUPTA, J.)

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Chandan/-

Vidya Pandey v. Vikash Kumat Tiwari And Ors.

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Vidya Pandey v. Vikash Kumat Tiwari And Ors.

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