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Rajasthan High Court – Jodhpur
Pushp Chand vs Smt.Madhu Rathi (2025:Rj-Jd:31187) on 16 July, 2025
[2025:RJ-JD:31187]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Misc. Appeal No. 681/2008
Pushp Chand
----Appellant
Versus
Smt.madhuRathi
----Respondent
For Appellant(s) : Mr. Nishant Shah
For Respondent(s) : Mr. C.P. Soni
HON'BLE MR. JUSTICE ARUN MONGA
Order
Reportable
16/07/2025
1. Under challenge before this court is an order dated 01.05.2008
passed by Additional District Judge (Fast Tract) No.3, Jodhpur in Civil
Misc. Case No.13/2008, vide which, two separate applicationsi.e. one
filed by respondent Nos.1 (co-plaintiff in the suit) and the other by
respondent no.3(another co-plaintiff in the suit), both under Order 9
Rule 9 read with Section 151 CPC were allowed.
2. Since the controversy has already been succinctly summed up
in an earlier order dated 28.05.2025 passed by this Court, for ease
of reference the same is reproduced hereinbelow:-
“1. Applicant Before this court seeks revival of his appeal, which
was earlier withdrawn as infructuous way back on 05.07.2010 by order
of this court. He is one of the defendants in the civil suit originally
instituted by co-plaintiff-respondent No.1 herein- Madhu Rathi
(plaintiff) before the competent civil court at Jodhpur, wherein the lis
pertains to property rights of the suit property.
2. At the outset, on a court query, as to how the instant application
is maintainable at this belated stage, learned counsel for the applicant
states that subsequent developments and change of circumstances, as
more specifically enumerated in the application, are self-speaking, and
are compelling enough for the appeal to be heard on merits. Let us first
have a look at that.
2.1. Learned counsel states that, briefly speaking, background of the
case is that applicant-Pushpchand/current owner originally filed a civil
suit on 30.05.1991 against the erstwhile owners of the suit land. Said
suit was decreed in favor of Pushpchand on 16.04.1996. In execution of(Downloaded on 21/07/2025 at 09:30:08 PM)
[2025:RJ-JD:31187] (2 of 16) [CMA-681/2008]the court decree, sale deed was executed in favor of Pushpchand and
even mutation entry was carried out in his name in the revenue records.
However, in the interregnum, on 29.06.1992, during pendency of the
suit filed by Pushpchand, Kalu Ram sold his share in the suit land to 63
different persons including respondent no.1 (Madhu Rathi) and 3
(Vijaylaxmi) herein. A sale deed dated 07.10.1992 was also executed by
the vendor/Kalu Ram in favor of those 63 persons. Subsequently,
respondent 1 and 3 herein, along with others, sought to implead
themselves in the execution proceedings instituted by Pushpchand for
effectuating decree dated 16.04.1996 granted in favour, but their
applications were dismissed by executing court since they were not
party in the original suit filed by Pushpchand.
2.2. Thereafter, the respondent no.1 and 3 and seven others, as a co-
plaintiff filed a suit (sometime in September, 1997) against the applicant
seeking declaration that decree dated 18.04.1996 passed in favor of
Pushpchand was collusive and obtained by fraud. Upon service the
applicant appeared and contested the suit.
2.3. Later on, the suit filed was dismissed as withdrawn qua all 9
plaintiffs on 01.06.2004. The withdrawing/dismissal of suit vide order
dated 01.06.2004, was neither challenged nor otherwise complained of
by any of the parties.
2.4. However, as a bolt from the blue, after more than 2 years, i.e. on
21.08.2006, respondent No.1 and 3 (co-plaintiffs) filed an application
under Order 9 Rule 9 CPC seeking restoration of the suit. Application
under 9 rule 9 was preferred without filing any application for
condonation of delay. Other 7 plaintiffs did not seek restoration of the
suit proceedings. Thus, out of 9 plaintiffs, 7 plaintiffs, except
respondent no.1 and 3 herein, have withdrawn from the foray. It is this
application under order 9 rule 9, which was allowed vide a trial court
order dated 01.05.2008, that led to filing of the main appeal under
Order 41 of CPC by the applicant herein (bearing Civil Misc. Appeal
No.681/2008).
2.5. The aforesaid appeal was admitted by a Coordinate Bench of this
Court (then seized of the matter) vide an order dated 26.05.2008 and
notices were issued to the respondents, including 1 and 3 herein.
2.6. It so happened that during the pendency of the aforesaid appeal,
the applicant herein filed an independent application under Order 7
Rule 11 CPC in the pending trial proceedings, seeking rejection of the
plaint, inter alia pleading that it did not disclose any cause of action.
2.7. The learned trial court allowed the application under Order 7
Rule 11 CPC and rejected the plaint and thus dismissed the suit. It was
in this background that the trial itself having culminated into finality,
owing to dismissal/rejection of the plaint, that the applicant herein filed
an earlier I.A. No.7230/2010 and sought to withdraw the main appeal.
It is/was stated therein that in view of the suit itself having been
dismissed and since the trial proceedings had already concluded, the
appeal had thus become infructuous.
2.8. When aforesaid application was taken up by this court, none
appeared for the non-applicants/ respondents no.1 and 3 herein who
were the only contesting co-plaintiffs in the suit. Be that as it may, this
Court vide order dated 05.07.2010 allowed the application for the
reasons stated therein and dismissed the appeal as withdrawn.
2.9. Subsequently, as it turned out, the respondent No.1 (co-plaintiff),
who had assailed the rejection of the plaint under Order 7 Rule 11 CPC
by the trial court by way of filing an appropriate Civil First Appeal
No.176/2010, was successful in getting the trial court’s order dated
10.02.2010 quashed. Vide judgment dated 29.01.2025 passed by a
Coordinate Bench of this Court, the appeal filed by respondents no.1(Downloaded on 21/07/2025 at 09:30:08 PM)
[2025:RJ-JD:31187] (3 of 16) [CMA-681/2008]and 3 herein (co-plaintiffs), against order 7 rule 11 order passed by
trial court, was allowed and suit was restored to its original number
and status.
2.10. A review application was filed by applicant/appellant herein to
recall the judgment dated 29.01.2025 ibid, which was disposed of vide
order 13.05.2025 dated with certain observation but appellate order
dated 29.01.2025 was not recalled as no error apparent on record was
found to exist.
3. In the changed circumstances as above, the present application
has been filed for recalling of the order dated 05.07.2010, stating that
since the appeal was withdrawn as infructuous due to the plaint having
been rejected, the appeal, as a necessary consequence of the restoration
of the suit, be also restored to its original number.
4. Given that the application to withdraw the appeal as infructuous,
which was filed by appellant (applicant herein), was allowed in absence
of the non-applicants/respondents for the grounds stated therein, the
requirement of notice in the instant application is dispensed with. In
any case it was the appellant who had himself withdrawn the appeal
and non-appellants/respondents neither appeared nor opposed the
same, no prejudice would be caused to them with the nature of order I
propose to pass.
5. Learned counsel for the applicant fairly draws my attention to
the objection raised by the Registry that the present application, being
for restoration of the main appeal which was dismissed as withdrawn
on 05.07.2010, and counted from the said date, is time-barred by 5403
days. However, he would argue that the cause of action to file the
present application arose only when the suit was restored by this Court
vide judgment dated 29.01.2025 and subsequently it arose when review
application was disposed on 13.05.2025 and, therefore, the application
is not hit by limitation. Be that as it may, he submits that an application
under section 5 of the Limitation Act, seeking condonation of delay has
also been filed as an abundant caution, accompanied with the
application seeking recall of order dated 05.07.2010.
6. Having heard and perused the record of the case file, at the
outset, I may observe here that once the suit and proceedings before the
trial court stood restored to their original position by order of this
Court, as a consequence thereof, all consequential proceedings and/or
applications filed or pending or decisions taken thereupon and the
consequences thereof also stood revived. Thus, given the circumstances,
as enumerated here in above, there is no delay, deliberate or otherwise,
in filing of the application seeking to recall order dated 05.07.2010.
Application of condonation of delay filed by the applicant here in is
allowed for the reasons stated therein.
7. Reverting to the application in hand, trite it may sound, but off-
shoot proceedings including any civil revision and/or miscellaneous
appeal or pending application in the main trial, are nothing but
extensions of the trial itself. Seen from that angle, restoration of the suit
would render the appeal in question herein also not infructuous, as was
stated while withdrawing the same. The very cause of withdrawing the
same as infructuous at that stage was the rejection of the plaint under
Order 7 Rule 11 CPC, which was found to be not sustainable by this
Court, as already noted hereinabove.
8. Accordingly, I am of the view that the appeal deserves to be
heard on merits. Order dated 05.07.2010 is recalled and appeal is
restored to original status. Application qua the same stands allowed. I
may also hasten to add here that the application herein, which has been
allowed, is though styled one under Order 41 Rule 19 read with Section
151 CPC, but to my mind, Rule 19 CPC is not applicable in the present(Downloaded on 21/07/2025 at 09:30:08 PM)
[2025:RJ-JD:31187] (4 of 16) [CMA-681/2008]case. However, this Court can exercise its inherent powers under
Section 151 CPC to allow the application, for which detailed reasons
have already been recorded.
9. In the aforesaid premise, since the application has been allowed,
the appeal is taken on record and is restored to its original status.
Having perused the impugned order passed by the learned trial court,
prima facie, it appears that in the absence of any application for
condonation of delay, the application under Order 9 Rule 9 CPC after
two years appeared to be barred by limitation, especially in the light of
no explanation given in the application and/or otherwise there being
any prayer in the application under Order 9 Rule 9 CPC to condone the
delay. It also seems from the impugned order that no explanation,
plausible or otherwise, has been offered in the application under Order
9 Rule 9 CPC by the respondent No.1 (plaintiff) seeking restoration of
the suit, as to what transpired over more than two years owing to which
applicants/co plaintiffs therein (respondents no.1 and 3 herein) did not
take any steps earlier to seek restoration of their suit.
10. Notices were though issued to the respondents at the time of
admission hearing, but being an old matter, none appears. In the
interest of justice, it is directed that fresh notices in the appeal be issued
to the respondents no.1 and 3 as well as their counsel who has filed
power on their behalf to enable him to seek instructions. Service is
permitted ‘dasti’ also, apart from all other permissible modes, including
electronic modes viz. email and WhatsApp.
11. Post in on 02.07.2025.
12. In the meanwhile, it is made clear that since all other co-
plaintiffs, except respondents no.1 and 3 herein, have already consented
to withdraw their claim against the applicant, the suit proceedings shall
be confined only in respect of the claim of the respondents no.1 and 3
herein. Qua the rest of the respondents herein the suit shall be treated
as dismissed, as was the position prior to the filing of the application
under 9 rule 9 CPC. It is also deemed appropriate that, till this court
passes further orders, the learned trial court, in the meanwhile, shall
adjourn the proceedings pending before it beyond the date fixed in this
court.”
3. Apropos, arguments have been heard today qua the
maintainability of the application filed by respondent no.1 under
Order 9 Rule 9 of CPC before the learned Trial Court, without seeking
any condonation of delay as well as on its merits. The respondent
No.3 does not seem to be interested to pursue the lis, as despite
service none appeared for her either on previous hearing or even
today.
4. Mr. Nishant Shah, Learned counsel for the appellant argues that
the impugned order is manifestly illegal, untenable in law, contrary
to record, and deserves to be set aside purely on jurisdictional
grounds which strike at the very root of the matter. He submits that
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[2025:RJ-JD:31187] (5 of 16) [CMA-681/2008]
restoration under Order 9 Rule 9 CPC is not maintainable where the
suit was withdrawn or dismissed based on a compromise. If the
compromise is alleged to be fraudulent, the remedy lies in a separate
suit challenging the same. Even the Court its self explicitly observed
in the impugned order that no restoration lies when the dismissal is
based on an agreed compromise unless fraud is pleaded and proved
in a separate substantive action. And yet, it erroneously allowed the
application under order 9 rule 9 filed by the respondent no.1.
4.1. Moreover, he argues that application Order IX Rule 9 CPC was
filed after an inordinate and unexplained delay of over two years
from the date of dismissal of the suit on 01.06.2004, without any
application for condonation of delay, and without even pleading any
sufficient cause in terms of Section 5 of the Limitation Act,
1963.Such an application for restoration must be filed within 30 days
from the date of dismissal, failing which, it is barred by limitation
unless the delay is satisfactorily explained and condoned by the court
under the Limitation Act.
4.2. Out of the nine original plaintiffs in the suit in question herein,
only two (Respondent No. 1, Smt. Madhu Rathi and the Respondent
No. 3, Smt. Vijaylaxmi) chose to file the application under Order IX
Rule 9 CPC, challenging the alleged compromise and withdrawal of
the suit. The remaining seven plaintiffs never objected, never
disowned the withdrawal, and never filed any independent or joint
application for restoration, a silent and telling acquiescence that the
withdrawal was indeed as per their will and instructions.When seven
out of the nine co-plaintiffs acquiesce and do not join the
proceedings for its reversal, the legal presumption is of implied
consent or at least no objection.
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4.3. He would further urge that suit was validly withdrawn by the
plaintiffs through their duly appointed counsel Sh. Loonkaran Purohit.
The Respondent No. 1 had also lodged a Complaint before the Bar
Council of Rajasthan alleging that her Advocate Loonkaran Purohit
had withdrawn the suit without her consent. The Bar Council, after
full adjudication, dismissed the complaint recording cogent findings
viz. that the advocate acted only on instructions of Power of Attorney
Holders (Mr. Devendra Jain and Mr. Ratan Patwa); he never filed any
direct Vakalatnama of the plaintiffs; affidavits of co-plaintiffs and the
attorney holders confirm withdrawal was instructed by plaintiffs; the
complaint was motivated and the advocate was being made a
scapegoat; no misconduct was found and complaint was
dismissed.These findings have attained finality. Respondent No.1 is
now barred from re-litigating the same factual issue in a different
forum by raising a similar plea of unauthorized withdrawal.While
Devendra Jain was power of attorney holder of all the plaintiffs in
the suit in question herein, whereas, Ratan Chand Patwa, husband of
Respondent No. 2 herein (co-plaintiff in suit) was the Power of
Attorney holder for 63 other plaintiffs in related suits involving
similar issues and properties. Devendra Jain and Mr. Ratan Chand
were, therefore, central representatives of a larger body of similarly
situated plaintiffs. He would submit that the power of attorney holder
of all the nine plaintiffs Devendra Jain also deposed before the Bar
council that he had duly instructed the advocate of plaintiffs to
withdraw the suit in view of compromise. Thus, the decision to
withdraw the suit was part of a deliberate, authorized and
widespread consensus, and not an isolated or unauthorized act.
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[2025:RJ-JD:31187] (7 of 16) [CMA-681/2008] 5. Whereas, Mr. C.P.Soni, learned counsel appearing for
respondent No.1 would argue that the application filed by respondent
No.1 under Order 9, Rule 9 CPC is very much maintainable. He
relies on the contents of said provision. He states that in terms
thereof and in light of the reasons stated in the application under
order 9 rule 9 filed by respondent no.1, the same has been correctly
allowed.
5.1. He further argues that the only remedy available to the
respondent No.1 was to file an application under Order 9, Rule 9 CPC
against recalling of the decree & judgment dated 18.04.1996.
6. Having heard the rival contentions and after perusal of the
impugned order, I shall now proceed to deal with the same and
render my opinion by recording reasons in the succeeding
paragraphs.
7. First and foremost, pertinent it is to note that impugned order
primarily premised on the reasoning that the then counsel for all the
co-plaintiffs, Shri Purohit, did not submit any written instructions
from any of the plaintiffs along with the application indicating that
they had consented to the withdrawal of the suit or that they had
instructed him to do so. The application under order 9 rule 9 for
withdrawal based on compromise was filed on 01.06.2004, and the
suit was dismissed. Trial court observed that no affidavit was filed by
Advocate Shri Purohit to the effect that was withdrawing the suit
based on the instructions of the plaintiffs. No signature of any
plaintiff is present on the court’s order sheet. No evidence was
produced to show that plaintiffs received any money as part of the
compromise. Thus, it formed the opinion that the suit was dismissed
through withdrawal without any written authority. The fact that
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[2025:RJ-JD:31187] (8 of 16) [CMA-681/2008]
plaintiffs did not initiate any disciplinary proceedings before the Bar
Council against their then counsel does not imply that their
applications should be dismissed. Trial court also held that since the
suit was dismissed as withdrawn in presence of the counsels for the
parties and in view thereof, provisions of Order 9 Rule 9 of CPC are
not attracted. It also held since section 151 was being invoked, there
is no limitation applicable on the inherent powers of the court.
Therefore, invoking Section 151 CPC, the suit was found to be fit for
restoration qua the two applicants.
8. The facts and reasoning recorded in the impugned orders which
are based on the pleadings of the parties do not reflect that either
the issue of complaint before the bar council filed by the respondent
no.1. (co-plaintiff) was raised before the learned trial court or
pleaded either in the application under order 9 rule 9 or even in the
reply filed to the same. On a query posed to the learned counsel for
the appellant qua the same, he would candidly submit that, at the
relevant time, appellant was not aware of pendency of the bar
council proceedings and or institution of the same. However,
respondent no.1 deliberately concealed this significant information
from the trial court during the order 9 rule 9 Proceedings. On the
ground of suppression and concealment and having not approached
the trial court with clean hands and; on count concealment even at
this stage from this court by respondent No.1, the instant appeal
ought to be allowed by setting aside the impugned order, he would
urge. Though the arguments addressed on this point have been
noted, but concededly, for whatever reason, the same were neither
raised nor subject matter of adjudication before the learned trial
court.
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[2025:RJ-JD:31187] (9 of 16) [CMA-681/2008]
9. Be that as it may, there are other sufficient reasons from which
it appears that the learned trial court misdirected itself in allowing
the application of the respondent No.1 as well as respondent No.3.
Let us see how.
10. In the course of hearing, application filed under Order 9 Rule 9
CPC has been handed over by learned counsel for the appellant,
which is taken on record, translation of which (as provided) is as
under:-
“1. That the petitioner along with respondents No 1 to 8 had filed a
suit regarding the cancellation of decree dated 18.04.1996, declaratory
decree, and permanent injunction, etc., wherein proceedings were
ongoing in this Court under the same. The said case was registered as
Civil Original No 282/04 titled “Sunita vs. Pushpchand” before this
Hon’ble Court.
2. That on 05.07.2006, the petitioner inquired from her counsel
about the proceedings of the said original suit. The counsel informed the
petitioner that the said case had already been dismissed on 01.06.2004
3. That thereafter, the petitioner appointed another advocate and
filed an application on 06.07.2006. On 04.08.2006, she inspected the file
of the original case, and on 05.08.2006, she applied for a certified copy,
which was received on 14.08.2006 containing the order dated
01.06.2004.
4. That no compromise of any kind took place between the petitioner
and respondents No. 9 to 12 (the defendants in the original suit), nor
was any compromise submitted before the Hon’ble Court. The petitioner
did not give any instruction or intimation for withdrawal of the said suit.
No withdrawal application was filed by the petitioner, nor does the said
application bear the petitioner’s signature. Due to the next date of
hearing being fixed as 05.06.2004 by the Hon’ble Court, the petitioner
(plaintiff) could not appear on the date of hearing.
5. That under the above circumstances, the petitioner desires to get
the original suit restored and to proceed with the case Non-restoration of
the case would cause irreparable loss to the petitioner.
6. That the only reason for restoration is to revive the original suit
Therefore, it is humbly prayed that this Hon’ble Court may kindly be
pleased to pass an order for restoration of the decided case, Civil
Original No. 282/04 titled “Smt Sunita & Others vs Pushpchand&
Others” decided on 01 06.2004.”
11. The suit was dismissed on 01.06.2004 on the basis of an
application for withdrawal submitted by the plaintiffs’ counsel. Out of
the nine plaintiffs, only two–namely, Smt. Madhu Rathi (Respondent
no.1) and Smt. Vijay Laxmi (Respondent no.3)–filed two separate
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applications for restoration. The remaining seven plaintiffs neither
objected to the withdrawal at any time nor have raised any grievance
since. The logical inference is that the withdrawal was undertaken on
the collective instructions of the plaintiffs, or at the very least, with
their knowledge and tacit consent.
12. Even now, it’s so appears that respondent no.3, once again, is
not interested to pursue the lis and has abandoned her cause, since,
despite service, none appears for her, even though she had preferred
an independent application under Order 9 Rule 9 seeking restoration
of the suit, which was allowed vide the impugned order herein. Same
is another indicator that the co-plaintiffs are approbating and
reprobating, as per their convenience.
13. The question, whether or not the contesting respondent No.1
herein (co-plaintiff) knew prior to 21.08.2006 about the withdrawal
and dismissal of the suit on 01.06.2004 and/or the said fact was in
her special knowledge, needs to be addressed before arriving at any
conclusion. The appellant (defendant in the suit) had no means and
measures to negate the claim of the respondent No.1 about her lack
of knowledge.
Moreover, nothing was placed on record of the trial court by the
respondent No.1 i.e. any previous communication qua the same
between her and her counsel and / or amongst the numerous other
co-plaintiffs. In such situation, a higher degree of scrutiny/caution by
the learned trial court was warranted to contest the story woven by
the respondent No.1 (co-plaintiff) stating that on 05.07.2006 she, as
a bolt from the blue, contacted her counsel only to be told that the
civil suit had been dismissed on 01.06.2004 and thus till 05.07.2006
she had no knowledge about the same. When tested on these touch
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stones, I find it highly implausible that the suit was withdrawn either
without instructions or without the knowledge of all the plaintiffs
including the respondent No.1
14. The learned Trial Court, while dealing with the restoration
applications, referred to the applicants’ plea that they came to know
of the dismissal only on 05.07.2006. However, it is undisputed that
eight out of nine plaintiffs–including the two applicants–resided in
Jodhpur, where the suit was pending. The two applicants’ claim that
they came to know of the dismissal more than two years later–
despite living in the same city where the litigation was pending–
defies both logic and judicial expectations of diligence. Trite it may
sound but the parties must demonstrate a minimum level of vigilance
in prosecuting their claims. Indulgence cannot and ought not to be
granted to a party which has been negligent or inactive for
inordinately long period. The applicants’ (respondent no.1 and 3
herein) conduct fails this standard and reflects culpable indifference.
It defies ordinary prudence that for over two years the applicants
made no attempt to contact their counsel or co-plaintiffs regarding
the progress of the case. Such prolonged inaction reflects gross
negligence and absence of bona fide conduct on their part. No doubt,
ordinarily, parties ought sign the compromise. However, the conduct
of all the plaintiffs(including co-plaintiffs respondents no. 1 and 3
herein), coupled with long acquiesce, as already noted, is self-
speaking and a direct pointer to the out of court settlement. The
allegation that their advocate acted fraudulently and withdrew the
suit without consent is nothing but a moonshine, taking advantage of
the technicalities and a clear afterthought and that too highly
belatedly. The allegation levelled against the advocate is an
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afterthought prompted in all likelihood due to internal disagreements
amongst the plaintiffs. Their story in the application under order 9
rule 9 thus does inspires no confidence. It does not seem to be a
case where they ought to be given any advantage of their
subsequent belated retraction and long acquiesce, for the same
would amount to giving advantage of their own wrong.
15. Even otherwise, The executed vakalatnama generally vests the
advocate with the authority to withdraw the suit. The vakalatnama
executed by the plaintiffs unambiguously authorized the advocate to
withdraw the suit. It is not disputed that vakalatnama was in force at
the relevant time and formed the basis of the application for
withdrawal. There is no evidence to suggest that the authority of the
counsel was ever limited or revoked prior to the withdrawal of suit.
Such authority remains valid until expressly revoked. The plaintiffs
did not take any legal steps to either limit or terminate this authority,
nor did they notify the Court of any restrictions. In the absence of
contrary evidence, the presumption under law is that the counsel
acted within his mandate. The restoration plea, therefore, cannot be
entertained on vague and belated allegations of overreach.
16. Further, the impugned order is also self-contradictory regarding
the timeline. It records one of the applications for restoration was
filed on 01.06.2006, whereas it also notes that the applicants learnt
of the dismissal of suit only on 05.07.2006 i.e. subsequent to the
date of the application. Such a contradiction casts doubt on the
genuineness of the restoration plea and indicates lack of due
diligence in preparing the application.
17. Adverting now to view taken by Trial court qua the non-
applicability of order 9 rule and thus the invocation of inherent power
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under 151 and there being no limitation on the inherent power of
court. Let us first have a look at the relevant provisions which for
ready reference are as below :-
“9. Decree against plaintiff by default bars fresh suit.
(1) Where a suit is wholly or partly dismissed under rule 8, the
plaintiff shall be precluded from bringing a fresh suit in respect of the
same cause of action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that there was sufficient
cause for his non-appearance when the suit was called on for hearing,
the Court shall make an order setting aside the dismissal upon such
terms as to costs or otherwise as it thinks fit. and shall appoint a day
for proceeding with suit.
(2) No order shall be made under this rule unless notice of the
application has been served on the opposite party.”
Section 122 of The Limitation Act, 1963:
Descriptio Period of limitation Time from
n which period
begins to run
Article.122 To restore a suit or appeal or Thirty The date of
. application for review or revision Days dismissal
dismissed for default of appearance
or for want of prosecution or for
failure to pay costs of service of
process or to furnish security for
costs.
(Emphasis supplied)
18. In the light of the aforesaid position of law, even though the
instant suit was dismissed upon withdrawal, such dismissal in my
opinion, is akin to dismissal for want of prosecution, and hence the
article 122 of limitation ibid applies. The suit was dismissed on
01.06.2004 and even if 05.07.2006 is taken as the date of
knowledge, the restoration application filed on 21.08.2006 is clearly
barred by limitation. Under Article 122 of the Limitation Act, 1963,
the limitation period for filing a restoration application in a suit
dismissed for want of prosecution is thirty (30) days from the date of
dismissal. The trial court, while restoring the suit, failed to address
this bar and misapplied the provisions of the Limitation Act.Article
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122 supra prescribes a strict 30-day limit for restoration applications.
Even assuming the extended date of knowledge (05.07.2006), the
application filed on 21.08.2006 is clearly time-barred. Courts are
bound by limitation statutes, which are enacted not merely to punish
delay but to ensure legal certainty and finality. Law of limitation is
founded on public policy. The Trial Court’s failure to appreciate this
bar has been a fundamental legal error.
19. The defendants case is that a settlement was arrived with the
plaintiffs. It was pursuant to this compromise that the plaintiffs’
counsel withdrew the suit. Notably, seven plaintiffs have never
contested this fact. Their silence over such a material issue for over
two decades supports the inference of a concluded compromise and
deliberate and intentional withdrawal of the suit. The assertion by the
defendants that a settlement had been reached–followed by
payment and subsequent withdrawal–finds substantial support in
the silence of seven plaintiffs for over two decades. Their silence,
when they were neither minor nor infirm, amounts to acquiescence.
Courts view long-standing silence on material issues as tacit
endorsement. In this case, it strongly reinforces the inference that
the withdrawal was a part of a concluded compromise, thereby
making the attempt at restoration unjust and disruptive to settled
expectations.
20. The unexplained delay of over two years by the two applicants,
their failure to pursue legal remedies against their own counsel, and
the complete absence of any corroborative material to support the
claim of fraud all suggest that the restoration application was a
belated and opportunistic attempt to reopen a settled matter.
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[2025:RJ-JD:31187] (15 of 16) [CMA-681/2008]
21. It appears that after the withdrawal of the suit, some inter se
dispute arose among the co-plaintiffs–either concerning the sharing
of the settlement proceeds or due to other personal reasons. It is in
this context that two of the nine plaintiffs sought to undo what had
already been mutually accepted and finalized, thereby disturbing the
finality of judicial proceedings. Restoration of suits is not a matter of
right but of discretion. Such discretion must be exercised judiciously
and only where there is a clear showing of sufficient cause,
promptness, and bona fides. The applicants’ inaction, obvious
internal disputes among co-plaintiffs and lack of any supporting
material point to an opportunistic strategy to revive litigation for
extraneous collateral reasons. Courts must guard against abuse of
process, particularly when the object seems to disturb a settled
compromise or resurrect stale claims. The finality of judicial orders is
an essential principle in the administration of justice. Permitting
restoration applications, based on speculative claims and showing
utter lack of due diligence as in this case, would erode this principle
and open the floodgates to endless litigation. Procedural rules are no
doubt handmaidens of justice, but at the same time, they are not to
be sacrificed at the altar of unending indulgence. The applicants’
attempt to reopen the suit runs counter to this principle.
22. To sum up the discussion, it is held as below :
i. The restoration application was clearly barred by limitation
under Article 122 of the Limitation Act; The delay in filing
the restoration application is substantive and fatal, not
merely technical.
ii. The plaintiffs’ conduct reveals a lack of due diligence,
deliberate ostensible negligence and bona fides;
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[2025:RJ-JD:31187] (16 of 16) [CMA-681/2008]
iii. There was no evidence of fraud or deception on the part of
their advocate;
iv. The silent acquiescence of the majority of plaintiffs affirms
the legitimacy of the withdrawal; Seven out of nine plaintiffs
acquiesced in the withdrawal, reinforcing the conclusion that
the withdrawal was lawful and consensual;
v. The trial court committed a serious legal error in ignoring
the statutory bar of limitation and restoring the suit without
adequate grounds.
23. As an upshot, the appeal is allowed. The impugned order dated
01.05.2008 passed by the learned trial court is set aside and the
applications under Order 9 Rule 9 CPC filed by respondent Nos.1 and
3 stand dismissed.
24. The original suit No.282/2004 thus stands disposed of in terms
of the judgment & decree already passed but respondents No.1 and
3 are at liberty to seek remedy to assail the same in accordance with
law.
25. Pending applications, if any, shall also stand disposed of.
(ARUN MONGA),J
464-AK Chouhan/-
Whether fit for reporting : Yes / No
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