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2025 DAILYLAW 3777 (HP)

Madan Lal v. Parul Kapil

2025-09-11

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner has assailed order dated 23.04.2019, passed by the Court of learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. (Annexure P-3), in terms whereof, an application filed under Order 9, Rule 4 read with Rule 9 of the Civil Procedure Code was allowed by the learned Trial Court. 2. Brief facts necessary for the adjudication of the present petition are that a civil suit was filed by the respondents and their mother, which was dismissed for non-prosecution. The contesting respondents herein were the minor plaintiffs in the said civil suit. An application was filed for restoration of the civil suit by Ms. Parul Kapil and Master Sahil Kapil, through Ms. Parul Kapil, praying for the restoration of the suit by setting aside the order of dismissal, dated 11.06.2010. It was mentioned in the application that in the said civil suit, which was a suit for specific performance of contract, they were being represented through their mother as their next friend, however, as their interest was not protected by their mother who was careless in execution of the suit, the same was dismissed for non-prosecution on 11.06.2010. It was further mentioned in the application that now that applicant No.1 had become a major on 20.08.2013, therefore, the application was being filed at the earliest without any delay from the date of knowledge for restoration of the suit. 3. In terms of the impugned order, the application has been allowed by the learned Court below by returning the following findings:- “13. I have heard the submissions of learned counsel for the parties and perused the entire record with painstaking care. It is neither in doubt nor in dispute that earlier, Asha Devi filed a civil suit No. 128/2005 for specific performance of contract against Rattan Chand, Ashok Kumar, Madan Lal and Raj Kumar This suit got dismissed vide order Ext.A-1. I have perused the order Ext. A-1. From the perusal of the order Ext.A-1, it is clear that this suit got dismissed for want of taking steps to bring on record the LRs of the then deceased defendant Rattan Chand. This suit got dismissed on 11.06.2010. Applicants filed this application on 20.11.2014. Thus, it is clear that this application has been filed after 4 years 5 months post the dismissal of the civil suit No. 128/2005. This suit got dismissed on 11.06.2010. Applicants filed this application on 20.11.2014. Thus, it is clear that this application has been filed after 4 years 5 months post the dismissal of the civil suit No. 128/2005. Applicant No. 1 has attained the age of majority on 20.08.2013. The limitation period to restore the suit dismissed in default is 30 days by virtue of article 122 of Limitation Act. The reason assigned for non-appearance before the court on dated 11.06.2010 is that applicants were minors and their legal guardian Asha Devi, did not care about their interest and abandoned the suit. 14. I have also perused the record. It is clear from the record that of-course, applicants were minor at the time of pendency of the civil suit No. 128/2005. Asha Devi, was their legal guardian. Now, Asha Devi has been made proforma respondent alongwith Rahul Kapil. Applicant No. 2 attained the age of majority during the pendency of this application. Thereafter, on the application of the applicant No. 2, his court guardian has been discharged and applicant No. 2 has been allowed to pursue with this suit on his personal capacity. However, applicants did not file any application for condonation of delay. Albeit, this application is also beyond the limitation period, even after attaining the age of majority by the applicant No. 1 and proforma respondent No. 2. …...17. Here, in this case, the applicants were minor at the time when the suit was dismissed. There was very serious issues involved between the parties in the civil suit No. 128/2005, which requires adjudication of the court on merit. Hence, I give liberal consideration to the word "sufficient cause" for condonation of delay and incline to allow this application. However, cost of Rs.2,000/- is imposed upon the applicants for delay and careless attitude and to compensate the respondents to defend this application unnecessarily for long period of time. Subject to this cost, this application is allowed and civil suit No. 128/2005 is ordered to be restored in its original position. Application is disposed off accordingly.” 4. Learned Senior Counsel for the petitioner argued that the impugned order is perverse, for the reason that the learned Court below erred in not appreciating that the application filed for restoration of the suit being beyond the period of limitation was not accompanied by any application under Section 5 of the Limitation Act. Application is disposed off accordingly.” 4. Learned Senior Counsel for the petitioner argued that the impugned order is perverse, for the reason that the learned Court below erred in not appreciating that the application filed for restoration of the suit being beyond the period of limitation was not accompanied by any application under Section 5 of the Limitation Act. He submitted that as the application was filed beyond the period of limitation, the filing of an application praying for condonation of delay could not have been dispensed with. Learned Senior Counsel further submitted that assuming that the applicant who had attained the age of majority subsequently had a right to file an application, then also the application under Section 5 of the Limitation Act ought to have been filed alongwith the application explaining therein the reasons for filing the application beyond the period of limitation. Learned Senior Counsel submitted that learned Trial Court erred in not appreciating that the application was bereft of any cogent reasons even as from the date of the major applicant having attained the age of majority. He submitted that in terms of the contents of the application, applicant No.1 had gained the age of majority on 20.08.2013, yet the application was filed on 25.10.2014. Even if, it is to be assumed that the cause of action accrued in favour of this applicant on 20.08.2013, firstly the application was not filed within the prioed of limitation as from the said date and further, the application is conspicuously silent as to what was the date of knowledge when the applicant came to know about the dismissal of the case for non prosecution. Accordingly, submits that as the impugned order is per se bad, the same be quashed and aside. 5. On the other hand, learned Senior Counsel appearing for the contesting respondents submitted that there is no infirmity in the impugned order, for the reason that the learned Court below has carefully considered the rival contentions of the parties and held that in light of the fact that the applicants were minor when the case was dismissed for non prosecution and even though there was no application filed for condonation of delay, yet it would be unfair to deprive the applicants of their valuable right to pursue the suit on merit. Learned Senior Counsel further submitted that in Para-17 of the order, learned Trial Court has observed that the words ‘sufficient cause’ should be given liberal consideration and the same was the right approach, for the reason that the intent should be that the parties should be heard on merit in a matter and this is exactly what the learned Trial Court has done in the matter. Learned Senior Counsel submitted that otherwise also, as one of the applicants was still a minor when the application was filed, therefore also, there was no question of any application being filed under Section 5 of the Limitation Act for condonation of delay, as it is a matter of record that the said applicant gained majority only during the pendency of the application. Accordingly, he submitted that as there is no infirmity in the impugned order and as there is no merit in the petition, the same be dismissed. 6. I have heard learned Senior Counsel appearing for the parties and have also carefully gone through the impugned order as well as other documents appended with the petition. 7. It is a matter of record that in the civil suit which was filed by mother of the contesting respondents, the contesting respondents were arrayed as plaintiffs. They were minor at the relevant time and the plaint was filed through their mother being their next friend. It is also a matter of record that the case was dismissed for non prosecution on 11.06.2010 as necessary steps were not taken in an application filed under Order 22, Rule 4 of the Civil Procedure Code. 8. In this backdrop, when one peruses the application filed under Order 9, Rule 4 of the Civil Procedure Code, one finds that the same is dated 25.10.2024. Incidently, this application is signed by applicant Parul Kapil, who was major at the relevant time, on her behalf as well as on behalf of Sahil Kapil, his brother, who was minor at the relevant time. In terms of the averments made in the application, applicant Parul is stated to have attained the age of majority on 20.08.2023. Now incidently, there is no explanation given in the application that as from 20.08.2013, what took the applicants more than an year in filing the application. In terms of the averments made in the application, applicant Parul is stated to have attained the age of majority on 20.08.2023. Now incidently, there is no explanation given in the application that as from 20.08.2013, what took the applicants more than an year in filing the application. Though, it is mentioned in Para-5 of the application that as applicant No.1 had become major on 20.08.2013 and the application was being filed at the earliest without any delay from the date of knowledge, but the application is conspicuously silent as to on what date the knowledge of the dismissal of the suit was acquired by the said applicant. Otherwise also, this Court concurs with the submissions made by learned Senior Counsel for the petitioner that when the application under Order 9, Rule 4 of the Civil Procedure Code was being filed beyond the period of limitation as from the date of the dismissal of the case for non prosecution, it ought to have been accompanied by an application under Section 5 of the Limitation Act. May be the fact that the applicant(s) was/were minor at the time when the case was dismissed for non prosecution terms could be good reason for condonation of delay, yet filing of an application, praying for condonation of delay could not have been done away with. 9. Even if this Court is to give benefit to applicant No.1 that she could have filed the application only after she attained the age of majority, then also the period between 20.08.2013 to 25.10.2014 has gone totally unexplained and further why the application was not filed immediately after the petitioner had attained the age of majority ought to have been explained through an application under Section 5 of the Limitation Act. 10. As a result of the dismissal of the suit for non prosecution on 11.06.2010, after the expiry of limitation, a right accrued upon the defendants and this right has been taken away in terms of the impugned order by the learned Trial Court without appreciating that the application filed under Order 9, Rule 4 of the Civil Procedure Code could not have been allowed, until and unless the judicial conscious of the Court was satisfied that the delay in filing the application was bonafide and justified. Obviously, these conclusions could have been drawn by the learned Court below only if there was an application filed under Section 5 of the Limitation Act, mentioning facts therein. 11. As far as the contention of the learned Senior Counsel for the contesting respondents that one of the applicants was still a minor when the application was filed is concerned, this Court is of the considered view that had the application been filed solely on behalf of the said minor then the things would have been different. However, here as the application besides the minor was also filed by a major applicant, therefore, at least said applicant was bound to have had filed an application under Section 5 of the Limitation Act, explaining the delay. The possibility of the application being a shadow litigation filed at the behest of the original plaintiff (mother) immediately after one of the child attained the age of majority can also not be ruled out. Learned Trial Court ought to have had considered the mother from said perspective also. 12. Accordingly, in light of the above observations, this petition is allowed. Impugned order dated 23.04.2019 (Annexure P-3) is quashed and aside and the matter is remanded back to the learned Trial Court with the direction that the contesting respondents be given one opportunity to file an application under Section 5 of the Limitation Act, explaining the delay therein and in the event of such an application and response thereto being filed by the present petitioner expeditiously the application be decided on or before 31.03.2026. The parties through learned Counsel are directed to appear before the learned Trial Court concerned on 06.10.2025. Record be sent back forth-with. 13. The petition stands disposed of. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any also stand disposed of accordingly.