IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1479 of 2007 1. CHANARIK GOPE 2. Khobhari Gope 3. Nathun Gope, all sons of late Doma Gope, all residents of village Sabajpura, P.O. Sawazpura, P.S. Danapur, District Patna … Defendants… Opp.Parties… Petitioners Versus VITTA VIBHAG KARAMCHARI SAHKARI Grih Nirman Samittee Ltd., duly registered bearing registration no. 53/pat/79 through its honourary Secretary Sri Nripendra Chandra Ghosh son of late Upendra Narayan Ghosh, resident of Khajpura, P.S. Gardanibagh, District Patna now through Sri Ajoy Kumar, son of Sri Naresh Chandra Shukla, honourary Secretary, resident of East Lohanipur, P.O. and P.S. Kadamkuan, District Patna … Plaintiff… Petitioner… Opposite party. ----------- 5. 21.7.2010 Though this application was listed for considering the application, I.A. No. 4308/2010 filed by the opposite party for vacating the order of stay passed by this Court on 4.8.2008, this Court with the consent of the parties has heard them on merits as the issue involved in the present civil revision application is quite simple and in fact also very limited. Assailing the impugned order Mr. Shivanandan Rai, learned Senior counsel appearing on behalf of the defendant- petitioner, would submit that Title Suit No. 635/1989 was dismissed for default by an order dated 22.6.1995 but the same was 2 restored by the impugned order dated 20.4.2007 in Misc. Case No. 24/2000 for no good and valid reasons. In this context Mr. Rai has also tried to assail the findings of facts recorded by the court below in the impugned while allowing such prayer for restoration and his submission in nut shell is that the defendant petitioners had to suffer almost for a period of 12 years on account of obvious negligent laches on the part of the plaintiff- opposite party. He would also submit that in the given facts and circumstances restoration of the suit would cause prejudice to the defendant- petitioners, inasmuch as the 3rd party right may have been created during the interregnum period when the suit had stood dismissed for default in the year 1995 and before filing of the miscellaneous case in the year 2000. Counsel appearing on behalf of the opposite party would submit that the opposite party is a registered Co-operative society and due to reasons beyond control of the office bearer of such society no effective steps could be taken for making Pairvi in the suit but as the stake involved 3 in the suit filed by the plaintiff- opposite party is quite heavy, the discretion exercised by the court below of restoring the suit after accepting the reasons supported in the light of its evidence led should not be lightly interfered by this Court, especially in exercise of power under section 115 C.P.C. This Court upon consideration of the aforesaid submissions as also on perusal of materials on record is of the considered view that the order passed by the court below dated 20.4.2007 exercising power under Order 9 Rule 8 C.P.C. for restoring the suit cannot be faulted either on fact or in law. The Court below while exercising its discretionary power has placed reliance on evidence on record and after its detailed consideration has recorded the following findings: “4. On careful scrutiny of the AWs. it is evident that they all have supported the case of the petitioner as well as statements of each other. Moreover they have not been cross examined on behalf of the opposite parties so their statements remained unrebutted, 4 unchallenged and uncontroverted. Obviously here is nothing on the record to rebut the Exts. 1 and 2 and also the date of knowledge of the petitioner as stated in his misc. petition. 5. On perusal of the case record of Title Suit No. 635 of 1989 it transpires that on 22.6.1995 no pairvi was done on behalf of the plaintiffs (petitioner) although pairvi had been done on behalf of the defendants no. 1 to 3 but in spite of calls no body else appeared on behalf of the parties in the court as a result of which the said title suit was dismissed for default and thereafter the instant misc. case was filed on 7.7.2000 which is not barred by limitation from the date of knowledge of dismissal of original suit which is 30.6.2000. 6. having considered the facts and circumstances of the case as well as evidence available on the record and in view of the matters discussed above I am of the opinion that the petitioner has been able to prove its case through evidence and here is nothing on the record to rebut the same and since the public money is involved in the original suit so, if the suit will not be restored there will be 5 irreparable loss to the petitioner. Accordingly, misc. case no. 24/2000 filed by the petitioner is allowed and order dated 22.6.1995 dismissing the title suit no. 635 of 1989 for default is set aside and the said original suit is restored to its original number subject to payment of cost of Rs. 5000/- by the petitioner to the opposite parties. Put up the record on 5.7.2007 for further proceeding in Title Suit No. 635 of 1989.” Such detailed consideration even for the purposes of restoring the suit would only go to show that the court below has exercised its discretion in accordance with law. The prayer, therefore, of the petitioner to set aside such an impugned order must be and is hereby rejected, inasmuch as the interest of justice would always require a suit, which was filed in the year 1989 and was also persued till the year 1995 by the plaintiff-opposite party, to be decided on merits. Before parting with this Court however must record that the counsel for the plaintiff-opposite party having realized that it was a gross case of negligence on 6 the part of the plaintiff in pursuing the suit on account of which the defendant- petitioners had to suffer, had himself offered additional sum of Rs. 5,000/- beyond Rs. 5,000/- given by the court below. However, this Court considering that the petitioners had to undergo ordeal for long 15 years would fix such amount of cost by way of payment of cost of Rs. 15,000/-, in all including Rs. 5,000/- as ordered by the court below. The additional sum of Rs. 10,000/- being directed to be paid to defendant petitioners towards cost by the plaintiff-opposite party must be paid within a period of one month from the date of receipt/ production of a copy of this order. It is also made clear that the deposit of Rs. 15,000/- by the plaintiff- opposite party in the court below within the aforementioned period shall be condition precedent for restoration of the suit. Counsel for the plaintiff-opposite party at this stage would submit that a sum of Rs. 5,000/- as directed by the court below has already been paid. If that be so, the additional liability of payment of the 7 plaintiff shall be only Rs. 10,000/- which must be paid within a period of one month from the date of receipt/ production of a copy of this order and if such payment is not made the order restoring the suit shall stand vacated. Subject to the aforementioned observation and direction, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/