@i HIGH COURT OF CHI-IATTISGARH AT BILASPUR S.B: Hon’ble Shri Prashant Kumar Mishra Writ Petition (227) No. 2498/2009 Agmgrance ‘ Shn Mano; Paranjpe counsel for the petmoner Shn F S Khare counsel for the respondents WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ORAL ORDER ' (22.11.2010) Plaintiffs have oled a\suit for declaration of title and permanent injunction on or about 27/03/1997. (2) The suit was dismissed for want of prosecution on 25/09/1 997 The order sheet of the said date records that the counsel engaged by the plalnnE pleaded/no instructions and Since no other counsel was present before the court, the trial court dismissed the suit for want of 1/ prosecution. .(3) An application under Order 9 Rule4 of CPC for restoration of suit was filed on 10/02/2000.. (4) This application has been dismissed by the trial court on 14/03/2002 which is impugned in this petition. ‘ 4 OTW V /I PETITIONER Surendrn Kumar Samant Ray I V Versus RESPONDENTS President Sahakan Vlpdan Sanstha, ’ Saralpah, District Mahasamund and Another (7 (5) counsel did not inform about the dismissal of the suit even though the counsel engaged by the plaintiff had earlier informed him that the plaintiff is not required to remain present on each dates of hearing and as and when his presence would be needed, a communication shall be issued to him. It is stated that when the plaintiE was not made aware of the dates of hearing, he engaged another counsel who informed him that the suit has been dismissed and immediately thereafter an application for restoration has been moved. (6) Learned counsel for the respondents would submit that the plaintiff was not diligent in prosecuting the suit 'and the order of dismissal does not call for any interference. (7) 0n perusal ofthe order passed by the trial court on 25/09/1997 it would appear that the counsel engaged by the plaintiff was present in the court and pleaded no instructions and his statement has also been recorded that he does not want to appear in the suit for want of instructions. It is to be npted that the suit was filed in March 1997 and it is not a case where the suit was pending for a long time and the plaintiff was in the habit of seeking adjournment on trivial grounds or was directed to perform some act and was negligent in prosecuting the case. The application under Order 9 Rule 4 of CPC along with ‘r application under section 5 of Limitation Act are supported hy iVaffidavit ofthe plaintiff There is nothing on the record to contradict Learned counsel for the petitioner would submit that the /i 2 ‘ (3’ the statement made in the application suppOITed with an aiiidavit that the counsel did not inform the plaintiE about the dismissal of the suit. (8) In the opinion of the court, the learned trial court should have allowed the suit to be contested on merits rather than dismissing prayer for restoration of the suit. (9) The trial court has acted in a technical and pedantic manner while disallowing the prayer for restoration. If the interference is not made iniexercise of powers under Article 227 of the Constitution of India there shall be failure of justice inasmuchas the plaintiffs claim has been dismissed without hearing him on merits. While ordering prayer for restoration position can also be compensated by allowing cost. (10) .It is, therefore, directed that on petitioner’s paying cost of Rs. 1000/- to the respondents within a period of eight weeks from today, the suit shall be restored and shall be proceeded ‘on merits. (l l) The writ petition is allowed. Impugned order is set aside on the above terms. The par/ties shall appear before the trial court on 14m January, 201 1. ‘ sd/n Prashant Kumar Mishra Judge ’ i /