THAKUR RADHA KRISHNA JEE Vs. RABI SHANKAR PANDEY

JUDGEMENT

(1.) Petitioners were plaintiffs in Title Suit No. 177 of 1992 which they filed for declaration that late Harihar Pandey never adopted Defendant No. 1 (O.P. No. 1) and also to declare that the plaintiffs were sebaits of the deities. The said suit was dismissed on 31.7.1996 due to default after rejecting thee plaintiffs, petition for adjournment. Thereafter, Miscellaneous Case No. 12 of 1996 was filed by the plaintiffs under Order IX, Rule 9, CPC for restoration of the aforesaid suit, but the learned Subordinate Judge-IV, Sasaram, rejected the said Miscellaneous Case by order dated 4.7.1997. Against the said order the plaintiffs filed Miscellaneous Appeal No. 43 of 1997 which was also dismissed by the learned District Judge, Rohtas at Sasaram, on merits on 16.3.1999 which is under challenge in this Civil Revision.

(2.) Learned counsel for the petitioners vehemently challenged the aforesaid orders passed in the Miscellaneous Case as well as in the Miscellaneous Appeal submitting that the plaintiffs could not appeal in the suit on 31.7.1996 due to the death of one of the plaintiff's brother-in-law and hence on that date a petition for adjournment of the case was filed, but the same was rejected and within one week thereafter the Miscellaneous Case was filed which subsequently shows genuineness of the plaintiffs. Learned counsel for the plaintiffs-petitioners also avers that in the said Miscellaneous Case evidence was adduced and all the witnesses of the plaintiffs-petitioners specifically stated about the death of brother-in-law of one of the plaintiffs. Hence, he submits that the cause for delay was fully explained and moreover since the suit was for declaration, it should not have been dismissed merely on technicalities, of law rather it should have been decided on the basis of equity and for sub-serving the ends of justice liberal approach should have been adopted as filing of fresh suit was clearly barred under the provision of Order Ix, Rule 9, CPC.

(3.) In this connection, learned counsel for the plaintiffs petitioners relies upon two decisions; one of the Hon'ble Apex Court in case of Collector, Land Acquisition Anantnag and Anr. v. Mst. Katiji and Ors., reported in AIR 1997 SC 1353, and another of the Calcutta High Court in case of Dulal Chandra Ojha v. Banamali Guchait and Ors., in which it was held that the Court had to see whether there was sufficient cause and should not consider other extraneous matters. In this connection, he further submits that the learned Courts below have rejected the claim of the plaintiffs-petitioners on extraneous consideration which were not at all vital and important for the decision of the restoration case. It was at this stage that in a restoration petition the merit of the claims of the parties in the suit should not have been gone into. Learned counsel for the petitioners also submits that in a decision in case of United Commercial Bank v. Jugeshwar Nath and Anr., reported in 1987 BLJ 625, it was held that the Court had discretion to allow restoration in case of some negligence. Hence, he submits that the impugned orders of the learned Courts below are bad in law and erroneous and are fit to be set aside.