BISHAN SWAROOP Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This is plaintiffs' petition under Article 227 of the Constitution of India against the order dated 19.09.2007 passed by learned Civil Judge (Junior Division), Rudrapur, whereby their application seeking restoration of the suit, which was dismissed under Order 9 Rule 3 C.P.C., has been rejected. Petitioners have also challenged the order dated 31.10.2017 passed by District Judge, Udham Singh Nagar, in civil revision no.65 of 2000, whereby the revision filed by them against the trial court's order dated 19.09.2007, too was dismissed.

(2.) Predecessors-in-interest of the petitioners filed a suit for specific performance, which was registered as Original Suit No. 205 of 1990. The said suit was dismissed for non-prosecution on 21.05.1996. The predecessors-in-interest of the petitioners moved an application for restoration of the suit under Order 9 Rule 4 of C.P.C., which was rejected on 25.01.1997.

(3.) After a lapse of more than nine years, petitioners again moved an application for restoration of the suit along with a delay condonation application, which was registered as Miscellaneous Civil Case No. 31 of 2006. The delay of nine years was sought to be explained by the petitioners by stating that Sri Dhanpat Rai (father of petitioner nos. 7 to 9) who was plaintiff no. 2 in the suit had suffered paralytic attack in the year 1991, consequently he was unable to move; likewise Bishambhar Dayal (father of petitioner nos. 1 to 6) plaintiff no. 1 also suffered paralytic attack in the last week of December, 1996, as a result, the restoration application filed by them, which was numbered as Miscellaneous Case No. 24 of 1996 remained unattended, consequently, the said application was rejected vide order dated 25.01.1997.