2025:CGHC:52853 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 244 of 2019 1 - (Deleted) Ratan S/o Shri Ghasiram (Died) (Deleted As Per Honble Court Order Dated 17.06.2025) 2 - Ruki S/o Ghasiram (Died) Through Legal Heir, (Legal Heir Added As Per Honble Court Order Dated 17.06.2025) 2.1 - (A) Smt. Pusibai Wd/o Late Ruki Ram Rathiya Aged About 54 Years R/o Village - Danaut, P.S. And Tahsil - Gharghoda, District - Raigarh (C.G.) 2.2 - (B) Ram Chandra Rathiya S/o Late Ruki Ram Rathiya Aged About 35 Years R/o Village - Danaut, P.S. And Tahsil - Gharghoda, District - Raigarh (C.G.) 2.3 - (C) Prit Ram S/o Late Ruki Ram Rathiya Aged About 33 Years R/o Village - Danaut, P.S. And Tahsil - Gharghoda, District - Raigarh (C.G.) 2.4 - (D) Smt. Pushpa Rathiya D/o Late Ruki Ram Rathiya Aged About 37 Years W/o Shri Biraj Rathiya, R/o Village - Kurunj-Khol, P.S. And Tahsil - Gharghoda, District - Raigarh (C.G.) 3 - Sushma D/o Ghasiram Aged About 28 Years R/o Village Futhamura, Police Station And Tahsil Gharghoda, District- Raigarh, Chhattisgarh................(Plaintiffs) ... Petitioner(s) versus 1 - Ram S/o Panikram Aged About 26 Years, R/o Danaut, Tahsil Gharghoda, Civil And Revenue District- Raigarh, Chhattisgarh. 2 - State Of Chhattisgarh Through Collector, Raigarh, Distirct- Raigarh, Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. R. S. Patel with Mr. Ashish Sahu, Advocate For Respondent No. 1 : Ms. Diksha Jaiswal, Advocate For Respondent No. 2 : Mr. Sanjeev Agarwal, PL Hon'ble Shri Justice Sachin Singh Rajput Order On Board 29.10.2025 HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.11.04 16:45:27 +0530 2 1. The present writ petition was filed by the original petitioners No. 1 & 2 namely, Ratan S/o Ghasiram and Ruki S/o Ghasiram. During the pendency of this writ petition, both the original petitioners No. 1 & 2 expired, and petitioner No. 2.1 (A) to 2.4 (D) namely Smt. Pusibai, Ram Chandra Rathiya, Prit Ram and Smt. Pushpa Rathiya have been substituted on record as their legal representatives. 2. The challenge in this writ petition, filed under Article 227 of the Constitution of India, is to the order dated 18.01.2019 (Annexure P/1) passed by the learned Additional District Judge, Gharghoda, District Raigarh (C.G.), whereby the appeal preferred by the original petitioners under Order 43 Rule 1(c) of the Code of Civil Procedure, 1908 (for short, “CPC”) was dismissed, thereby affirming the order dated 14.10.2014 passed in MJC No. 7/2011 by the learned Civil Judge Class-I, Gharghoda, District Raigarh (C.G.). 3. The facts of the case, in a nutshell, are that a civil suit for declaration of title, confirmation of possession, and permanent injunction was filed by the original petitioners No. 1 and 2 along with petitioner No. 3 before the Court of Civil Judge Class-I, Gharghoda, District Raigarh (C.G.), which was registered as Civil Suit No. 6A/2005. The said suit remained pending for a considerable period of time and was ultimately dismissed for want of prosecution on 12.05.2011, as the counsel for the petitioners/plaintiffs failed to appear when the case was called for hearing. Thereafter, an application under Order 9 Rule 9 of the CPC was filed by the petitioners/plaintiffs on 11.07.2011 seeking restoration of the suit. Initially, no application for condonation of delay was filed, but the same was subsequently submitted in the year 2013. From the record, it appears that the application for condonation of delay was dismissed on 11.10.2013; however, the application under Order 9 Rule 9 of the CPC remained pending and was ultimately dismissed vide order dated 14.10.2014. The petitioners thereafter filed WP227 No. 827 of 2013 challenging the order dated 11.10.2013 before this Court, which was disposed of on 11.07.2018. It appears that prior to the disposal of the said writ petition, the application under Order 9 Rule 9 of the CPC had already been decided by the learned Civil Judge, and an appeal against the said order was pending. This Court, while disposing of the writ petition, directed the appellate court to decide the appeal preferred by the petitioners/plaintiffs and to consider the grounds relating to the dismissal of the application under Section 5 of the Limitation Act. Pursuant thereto, the appellate court, by the impugned order dated 18.01.2019, affirmed the order dated 14.10.2014 passed by the learned Civil Judge, giving rise to the present writ petition. 4. Learned counsel for the petitioner submitted that while dismissing the application under Section 5 of the Limitation Act, the learned Civil Judge ought to have simultaneously dismissed the application under Order 9 Rule 9 of the CPC; however, the same was kept pending and ultimately dismissed it later. It is further submitted that there was only a delay of 10 days in filing the application under Order 9 Rule 9 of the CPC, and sufficient cause for such delay had been duly explained. Despite this, both the learned Civil Judge and the appellate court committed an error of law in dismissing the application under Section 5 of the Limitation Act as well as the application under Order 9 Rule 9 of the CPC. Hence, it was prayed that the delay may be condoned and the impugned order may be set aside. 5. Per contra, Ms. Diksha Jaiswal, learned counsel for the respondent No. 1, submitted that the petitioners/plaintiffs were required to explain the delay on a day-to-day basis, which they failed to do. Once the application for condonation of delay was dismissed, the learned Civil Judge, despite that, decided the application under Order 9 Rule 9 of the CPC on merits, and such findings were duly affirmed by the appellate court. Therefore, no illegality or irregularity can be found in the impugned order. 4 6. Learned counsel for the State submitted that the dispute is purely between the petitioners and respondent No. 1, and the State is only a proforma party in this case. 7. Heard learned counsel for the parties and perused the record. 8. From a perusal of the record, it is evident that the suit was instituted in the year 2005. The order sheets appended to the writ petition indicate that the suit remained pending for about 5-6 years. It does not appear that prior to 12.05.2011, the plaintiffs or their counsel had remained absent. It seems that on the said date, i.e., 12.05.2011, the counsel for the petitioners could not appear when the matter was called, leading to the dismissal of the suit for want of prosecution. 9. The explanation for delay given in the application appears to be bonafide and reasonable. Therefore, instead of rejecting the application, the learned Civil Judge ought to have allowed the same and proceeded to decide the application under Order 9 Rule 9 of the CPC on merits. However, despite the dismissal of the application under Section 5 of the Limitation Act, the learned Civil Judge kept the restoration application pending, which was ultimately dismissed. 10. The Supreme Court in the case of M. K. Prasad Vs. P. Arumugam reported in (2001) 6 SCC 176 observed as under:- “ In construing Section 5 of the Limitation act, the court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal & Ors. v. Rewa Coalfields Ltd. [AIR 1962 SC 361] held: "Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring the 5 appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period"? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last day for filing the appeal & the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr.Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous. In construing S.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light- heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion 6 ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafide is imputable to the appellant." 11. The Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy reported in (1998) 7 SCC 123 held as under:- “A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss. In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Riderless Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date.” 7 12. Parameters to allow the application for condonation of delay has been well settled by the judgment of Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others reported in (2013) 12 SCC 450 wherein the Hon’ble Supreme Court in Para 21 observed as under:- “21. From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one 8 warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant S.A. No.331 of 2013 not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking Page 7 of 8 recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 13. Considering the facts and circumstances of the case, and keeping in view that the petitioners had diligently pursued their rights before the learned Civil Judge for a considerable period, and that their absence on the relevant date does not appear to be deliberate or mala fide, this Court is of the view that dismissal of the application under Section 5 of the Limitation Act has resulted in depriving the petitioners of an opportunity to seek adjudication of their civil rights on merits. 14. Accordingly, this Court is of the opinion that the impugned order dated 18.01.2019 (Annexure P/1) deserves to be and is hereby set aside. Consequently, the applications under Section 5 of the Limitation Act and under Order 9 Rule 9 9 of the CPC are allowed. The Civil Suit No. 03/2018 is restored to its original number and shall be decided on merits within a reasonable period of time. The parties are directed to appear before the learned Civil Judge, Gharghoda, District Raigarh (C.G.), on 1st December, 2025. 15. Accordingly, the writ petition is allowed. No order as to costs. 1) \ Sd/- (Sachin Singh Rajput) Judge H.Ansari