At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE S.N. HUSAIN
For the Appearing Parties: Sanjay Kumar, Naushad Akhatar, Sudama Singh, Rajni Kant Singh, Advocates.
(1.) Heard the learned counsel for the parties.
(2.) The petitioners are plaintiffs of title suit No. 154 of 1994 which they had filed for permanent injunction and other ancillary relief against the defendant-opposite party.
(3.) The petitioners are aggrieved by order dated 31.3.2004 by wh
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ich the Munsif-II, Sasaram, dismissed Miscellaneous Case No. 8 of 1998 filed by them under Order IX, Rule 4 of the Code of Civil Procedure for restoration of the aforesaid Title Suit No. 154/94 which was dismissed for default on 2.3.1998.
(4.) The short fact of this case is that the petitioners had filed the said title suit on 19.8.1994 and after more than two years they filed court fees in the trial Court on 9.1.1997 and thereafter despite repeated orders they did not file requisites for issuance of summons etc. to the defendant for more than one year and as such the case was dismissed for default on 2.3.1998.
(5.) For restoration of the aforesaid suit the plaintiffs filed the aforesaid Miscellaneous Case No. 8/98 which was dismissed by the learned Court below by the impugned order dated 31.3.2004 on the ground that ever since the filing the suit the plaintiffs- petitioners had been quite irregular in participating in the proceedings of the case and in compliance of the orders of the trial Court. The learned Court below discarded the plea of the petitioners that they are pardanashin ladies and there is none else in the family to look after the case as the son of petitioner No. 1 had appeared to give evidence in the case and her husband was also alive.
(6.) After hearing the learned counsel for the parties and after perusing the materials on record it is apparent that the petitioners are old pardanashin ladies and they had no knowledge about the proceedings of the title suit as the person who was looking after the suit aid not inform them about the specific orders of the Court. There is nothing on record to disprove the said claim of the petitioners. However, the deposition of the son in miscellaneous case and the existence of the husband of petitioner No. 1 cannot illegally contradict the claim of the plaintiffs-petitioners. So far the question of interest is concerned ft is quite apparent that the plaintiffs had interest in the suit as they had duly filed the Court fee and had also filed the miscellaneous case for restoration of the suit. Hence, the assumption of the learned Court below that the plaintiffs had no interest left in the suit is baseless."
(7.) Learned counsel for the petitioners undertakes on behalf of his client that the petitioners will file the requisites for issuance of summons for the defendant within one month from today and will not take any unnecessary adjournment in the suit on any ground whatsoever.
(8.) In the aforesaid circumstances I hereby set aside the impugned order passed by the learned Court below and restore Title Suit No. 154/94 to its original file and number. This order will be subject to payment of cost of Rs. 2,000/- to Mr. Sudama Singh, learned counsel for the opposite party, within one month from today and also subject to the petitioners' compliance of the undertakings given on his behalf by his counsel.
(9.) Accordingly, the civil revision application is allowed with the aforesaid directions