1 2025:CGHC:17103 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 328 of 2025 1 - Tapaswani Panda D/o Late Krishna Chandra Panda Aged About 65 Years Jutemill Garment Shop K Pass, Jutemill Thana Samip, Raigarh, Tehsil And District Raigarh Chhattisgarh. (Wrongly Mentioned In Causetitle Of Impugned Order As Tapaswani Panda, S/o Late Krishna Chandra Panda, Aged About 48 Years, Jutemill Garment Shop K Pass, Jutemill Thana Samip, Raigarh, Tehsil And District Raigarh Chhattisgarh. ... Petitioner versus 1 - Laxmi Narayan Patel S/o Pyarelal Aged About 67 Years R/o Village Ghanatarai, Tehsil And Thana - Pussour, District Raigarh Chhattisgarh. 2 - Up Panjiyak Raigarh, Tehsil And District Raigarh Chhattisgarh. 3 - State Of Chhattisgarh By The District Collector, Raigarh, District Raigarh Chhattisgarh. ---- Respondents ----------------------------------------------------------------------------------------- For Petitioner : Shri Chandresh Shrivastava, Advocate. For Respondent/State : Shri Pramod Ramteke, P.L. ----------------------------------------------------------------------------------------- Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 15.04.2025 SMT NIRMALA RAO -2- 1. The petitioner has filed this petition seeking the following relief(s):- “10.1 That the Hon'ble court may please to call for the entire records pertaining to the case of the petitioners. 10.2 That this Hon'ble Court may kindly be pleased to quash the impugned order dated 12/03/2025 passed by First Civil Judge Senior Grade, Raigarh in MJC Civil no. 55/2024, (ANNEXURE P-1) 10.3 That this Hon'ble Court may kindly be pleased to reject the application of the respondent no.1/applicant under Section 5 of Limitation Act on merits holding the delay occurred in pursuing the present proceedings of MJC Civil for restoration to be not bonafide and reasonable which cannot be condoned. 10.4 That this Hon'ble Court may kindly be pleased to reject the application of the respondent no.1/applicant under Section 151 of Code of Civil Procedure to be not maintainable as the same was not bonafide and there is separate provision for the relief sought in said application. 10.5 That this Hon'ble court may further be pleased to pass any other order in favour of petitioner as it may deem fit and proper under the facts and circumstances of the case with cost.” 2. Learned counsel for the petitioner/defendant No.1 would submit that respondent No.1/plaintiff filed a suit on 27.8.2010 for declaration of title and affirmation of possession pertaining to lands bearing Survey Nos. 751/2, 751/3, 752, 753/3, 753/2 and 751/4, a 3 total area of 0.661 hectares on the ground that the aforesaid lands were purchased by the father through a registered sale deed dated 26.4.2006. He would further submit that original defendant No.1 filed the written statement and denied the plaint averments. It is also pleaded that the sale deed was executed by playing fraud. The original defendant No.1 died on 9/10.01.2012. The plaintiff/respondent No.1 moved an application for substitution of the legal representatives of the original defendant No.1, which was allowed by the learned trial Court vide order dated 3.5.2018. The plaintiff was directed to carry out the necessary amendments and to pay the process fee through ordinary and registered mode for the issuance of summons to the newly added defendants. He would contend that the plaintiff failed to make payment of the process fee, and in the meanwhile, the wife of the original defendant No.1 also expired. The plaintiff moved an application under Order 1 Rule 10 of CPC which was allowed vide order dated 6.8.2018 and the plaintiff was directed to make payment of the process fee for the issuance of summons to newly added defendant No.1. The plaintiff sought time to make the default good on 7.8.2018 and again on 28.8.2018 but failed to comply with the order. Consequently, the suit was dismissed vide order dated 27.9.2018 according to the provisions of Order 7 Rule 11 of CPC and a decree was drawn -4- accordingly. 3. Learned counsel for the petitioner would also submit that the plaintiff preferred an appeal under Order 41 Rule 1 of CPC along with an application under Section 5 of the Limitation Act. He would further argue that the learned Appellate Court held that the delay of 1 year had not properly been explained. Learned Appellate Court also held that as the suit was dismissed for non-payment of process fee according to the provisions of Order 9 Rule 2 of CPC, the appeal was not maintainable and the plaintiff should move an application under Order 9 Rule 4 of CPC. Learned counsel for the petitioner would also argue that the plaintiff/respondent No.1 moved an application under Order 9 Rule 7 of CPC on 24.12.2019 along with an application for condonation of delay. He would contend that there was a delay of 1 year and 21 days in filing the said application and the delay was not properly explained. It is also submitted that the plaintiff would get the benefit of Section 14 of the Limitation Act for the period during which the appeal remained pending. He would also contend that the plaintiff subsequently modified the application from Order 9 Rule 4 of CPC to Order 9 Rule 7 of CPC. He would state that despite objections raised by the petitioner, the learned trial Court held that there was no requirement to consider the application under Section 5 of the Limitation Act as the issue of 5 delay has already been dealt with and condoned by the Appellate Court. The matter was then fixed for hearing on the application under Order 9 Rule 4 of CPC. He would further state that the learned trial Court ought to have decided the application moved under Section 5 of the Limitation Act on merits, particularly in view of the fact that there was a delay of more than 1 year. 4. On the other hand, learned counsel for the State would oppose the submissions made by counsel for the petitioner. 5. I have heard learned counsel for the parties and perused the documents present on the record. 6. Admittedly, there was a delay of more than 1 year in filing the appeal against the order dated 27.9.2018. Learned Appellate Court dismissed the appeal as not maintainable vide order dated 30.11.2019. The matter remained pending before the Appellate Court from 11.10.2019 to 30.11.2019. The application under Order 9 Rule 7 (read with Order 9 Rule 4) of CPC was moved by the plaintiff on 24.12.2019 whereas the suit was dismissed vide order dated 27.9.2018 and thus, there was a delay of more than 1 year. Learned trial Court recorded a finding that the period spent during the appellate proceedings would only be condoned while considering the issue of limitation and further held that there was no requirement to consider the application moved under Section 5 of -6- the Limitation Act. 7. Perusal of the order passed by the learned Appellate Court dated 30.11.2019 would show that the concerned Court has not condoned the delay. Admittedly, the plaintiff is entitled to get the benefit of Section 14 of the Limitation Act for the period during which the appeal remained pending. Learned trial Court should consider both applications moved by the plaintiff under Order 9 Rule 4 of CPC and under Section 5 of the Limitation Act. 8. In view of the above-mentioned facts, the order dated 12.3.2025 passed by the learned trial Court, whereby the application moved by the plaintiff under Section 5 of the Limitation Act was ignored, is hereby set aside. Learned trial Court is directed to decide the application moved under Section 5 of the Limitation Act as well as the application moved under Order 9 Rule 4 of CPC on merits. 9. Accordingly, the petition is disposed of. Sd/- (Rakesh Mohan Pandey) Judge Nimmi