RABIA BIBI Vs. JULEKHA BIBI

JUDGEMENT

(1.) Heard the learned counsel for the petitioners as well as the learned counsel for the opposite parties.

(2.) This petition has been filed under Article 227 of the Constitution of India whereby prayer has been made for setting aside the order dtd. 5/4/2023 passed in Civil Misc. Appeal No.01 of 2023 by learned Principal District Judge, Dhanbad whereby a petition filed for restoration under Order IX Rule 4 read with Sec. 151 of the CPC along with an application under Sec. 5 of the Limitation Act, 1963 has been rejected by the learned court. The further prayer is made for setting aside the order dtd. 13/9/2022 whereby the Original Suit No.07 of 2021 has been dismissed for non-prosecution and the prayer is also made for restoration of Probate Suit No.07 of 2021 to its original file.

(3.) Mr. Shashank Shekhar, the learned counsel appearing on behalf of the petitioners submits that Original Suit No.07 of 2021 was at the initial stage and even notices have not been issued in that case. He submits that the said suit was dismissed for default as the court-fee was not filed within granted time. He submits that thereafter a petition for restoration of the said suit under Order IX Rule 4 read with Sec. 151 of the CPC along with an application under Sec. 5 of the Limitation Act, 1963 has been filed which has been rejected by the learned Principal District Judge, Dhanbad by order dtd. 16/1/2023 on the ground that the limitation has not been explained properly. He submits that this matter was earlier posted before the co-ordinate Bench of this Court and he relied in the case of Anwari Begum and Others v. The State of Bihar (Now Jharkhand) and Others reported in 2011 (1) JLJR 304 wherein it was held that if the suit is not admitted and it was dismissed for default at the initial stage, there is no need of issuing notice upon the other side. He submits that by order dtd. 3/8/2023 the co-ordinate Bench of this Court has referred this aspect of the matter before the Division Bench which was placed before the Division Bench and the Division Bench by order dtd. 27/11/2024 answered the Reference saying that if the suit is not admitted and initially it has been dismissed for non-prosecution, there is no need of issuing notice upon the other side. He submits that in view of that, after the answer by the Division Bench, this matter has been listed before this Bench. He further submits that the learned court has not considered about the Covid-19 pandemic and the suit was dismissed for default by order dtd. 13/9/2022. He further submits that the petitioners are the daughters of the executor namely Qutubuddin Ansari and they could not appear on the fixed date for submitting the court-fee as they are married daughters. He submits that the petitioner no.1 was admitted in National Highways Nursing Home from 3/5/2022 to 20/7/2022 and as such she could not appear on 6/5/2022, 9/6/2022 and on 8/7/2022. The petitioner was again admitted in Nichitpur Hospital and Research Centre Pvt. Ltd. From 31/7/2022 to 4/8/2022 and in view of that the petitioner could not appear before the learned court on 23/8/2022 and on 13/9/2022 and the suit was dismissed for default. He then submits that along with the petition filed before the learned court, the medical certificate was also annexed. However, the learned court has been pleased to not accept the same.