IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2113 of 2006 MOST.MALTI DEVI @ MALTI GHOSH, WIFE OF LATE DR. PANCHU GOPAL GHOSH, RESIDENT OF RESERA TOWN, MOHALLA LAKSHMIPUR, WARD NO.13 OLD, 14 NEW, P.O. + P.S. ROSERA, DISTRICT-SAMASTIPUR. ………………………PLAINTIFF-APPLICANT/PETITIONER. Versus 1. BINDESHWAR PASWAN. 2. RAJO PASWAN. 3. UMESH PASWAN. SONS OF LATE RAM KISHUN PASWAN. 4. HARISH CHANDRA PASWAN. 5. AMARJIT PASWAN. SONS OF LATE JALIM PASWAN. 6. GANESH PASWAN, SON OF LATE JALIM PASWAN. 7. DASIYA DEVI, WIFE OF LATE JALIM PASWAN. ALL ARE RESIDENTS OF VILLAGE SAHIYAR BURJ, P.O. P.S. ROSERA, DISTRICT-SAMASTIPUR. ……DEFENDANTS-OPPOSITE PARTIES/OPP. PARTIES. ---------- For the Petitioner : Mr. Devendra Prasad Singh, Advocate. For the Opp. Parties : Mr. Ashok Kumar Mishra, Advocate. --------- 11. 9.2.2010. Heard learned counsel for the petitioner and the learned counsel for Opposite Party Nos.1, 2 and 4 to 7. None had appeared for Opposite Party No.3 despite service of notice. Learned counsel for the petitioner submitted that if the impugned order had been passed in favour of the - 2 - petitioner that could have decided the Miscellaneous Case in her favour and, thus, in view of the proviso to Section 115(1) of C.P.C., this Civil Revision would be maintainable. Learned counsel appearing for the opposite parties also does not question the maintainability of this revision. I, thus, proceed to decide this Civil Revision on its own merit. This Civil Revision is directed against the order dated 16.9.2006 passed in Misc. Case No.22 of 2006 by the learned Civil Judge, Rosera, whereby the petitioner’s prayer for restoration of Title Suit No.44 of 2003 had been rejected on account of such petition being barred by law of limitation. Learned counsel for the petitioner submitted that Title Suit No.44 of 2003 was dismissed for want of prosecution on 2.4.2005. It is contended that a case for restoration of the Title Suit concerned was filed which was numbered as Misc. Case No.22 of 2006, however, the same was dismissed on 16.9.2006 on account of it is being barred by law of limitation. It is submitted that though a sufficient cause was shown for the delay in filing such petition under - 3 - Section 5 of the Limitation Act, the court concerned had come to the conclusion that even if it has been stated in the petition concerned that the petitioner had gone to Kolkata for about one year but it has not been stated that as to for what reason she had gone to Kolkata and also that she has not taken proper steps for making necessary pairvi in the Title Suit. It has been urged that the Title Suit was dismissed even prior to the appearance of the other side and that it would cause hardship upon the plaintiff if the suit concerned is not restored to its original file and number. Learned counsel submitted that in the facts and the circumstances of the case, the court concerned should have condoned the delay in the interest of justice and should have proceeded to decide the Title Suit. Learned counsel appearing for the opposite parties contended that though it is true that the suit was dismissed for want of prosecution even before the appearance of the defendants-opposite parties, however, there has been delay of more than one year in taking steps for restoration of suit. The delay having not been explained to the satisfaction of the court concerned, it had discretion and had rightly - 4 - dismissed the Miscellaneous Case concerned on the ground of law of limitation. I have heard the parties and perused the records of this case. The petitioner had filed a supplementary affidavit appending therewith a copy of the petition which was filed under Section 5 of the Limitation Act for condoning the delay in filing the Miscellaneous Case concerned. In the petition, it has been stated that the petitioner had gone to Kolkata to stay with her son who was in service there and had remained there for about a year, However, thereafter her pairvikar left pairvi and when she returned back from Kolkata, she did not had any knowledge with regard to the progress of the suit and, ultimately, she had come to know regarding the dismissal of the suit and upon advice she had taken step for filing of the Miscellaneous Case. In my opinion, the court below in the facts and the circumstances of the case, ought to have condoned the delay and decided the Miscellaneous Case on its own merit. It is well settled that, of course, it is the discretion of the court to condone the delay after being satisfied with the reasons - 5 - assigned on such petition for condonation of delay, however, this being a case for restoration of the suit, the court should have taken a liberal view and on the ground of explanation given in the petition for condoning the delay filed under Section 5 of the Limitation Act, it ought to have condoned the delay. In this context, it would be apt to refer to decision of the Apex Court in Raj Kishore Pandey Vs. State of Uttar Pradesh and others, reported in (2009)2 Supreme Court Cases 692, wherein it had been held that the court is required to look at all facts given in the application and as far as possible the endeavor of the court should be to decide the case on its merit and not to dismiss on the ground of technicality. The relevant passage of the aforesaid judgment is quoted as under: “8. In our opinion, whether the applicant has made out sufficient cause or not, in the application filed, the court is required to look at all the facts pleaded in the application. No doubt, the consideration of the existence of sufficient cause is the discretionary power with the Court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the Court in such matters should be to advance the cause of justice and not the cause of technicalities. A case, as far as possible, should be decided on merits and the party should not be deprived to get the case examined on the merits.” - 6 - In above view of the matter, this Court also is of the opinion that the approach of the court below should have been to advance the cause of justice and not the cause of technicality. Of course, the consideration of existence of sufficient cause is the discretionary power of the court but such discretion has to be exercised on sound principles and not on mere technicalities as had been held in the aforesaid case also. As far as possible, the approach of the court should be to examine the case on its own merit. As a result, this Civil Revision succeeds and is, accordingly, allowed. The impugned order dated 16.9.2006 is set aside. The delay in filing the Misc. Case No.22 of 2006 is hereby condoned and the court concerned is directed to dispose of Miscellaneous Case on its own merits after hearing the parties preferably within two months from the date of receipt or production of copy of this order. Since, this order has been passed in presence of the parties, no further notice would be required to issue to the parties and they are directed to appear before the court concerned on their own in the third week of March, 2010 - 7 - alongwith a copy of this order. P.S. (Dr. Ravi Ranjan,J)