Page No.1 of 4 IN FA(MAT)-223-2024 2025:CGHC:58140-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 223 of 2024 Shiv Mangal S/o Ramdhan Aged About 58 Years R/o Village Telgawan P.S. Bhatganw, Tahsil Bhaiyathan, District : Surajpur, Chhattisgarh ... Appellant Versus Kabutari Bai W/o Buddhu Rajwar Aged About 50 Years R/o Village Tamor, P.S. Bhatganw, Tahsil Bhaiyathan, District : Surajpur, Chhattisgarh ... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------- For Appellant : Mr. Ashok Kumar Shukla, Advocate For Respondent : Mr. Divyanand Patel, Advocate ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board (01.12.2025) Sanjay K. Agrawal, J (1) This appeal under Section 19(1) of the Family Courts Act, 1984 has been filed by the appellant/plaintiff challenging order dated 18.01.2024 (Annexure-A/1), whereby his application filed under Order 9 Rule 9 of CPC read with Section 05 of the Limitation Act has been rejected finding no merit. SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 4 IN FA(MAT)-223-2024 (2) The facts of the case, in short, are that the appellant/plaintiff filed an application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights on 01.07.2019 being Civil Suit No.12-A/2019, which was dismissed for want of prosecution on 15.09.2021. Thereafter, the appellant/plaintiff preferred MJC No.03/2022 for restoration of said original suit, which also stood dismissed by impugned order dt. 18.01.02024 finding no merit. Against which, this appeal has been preferred. (3) Learned counsel for the appellant would submit that since the appellant has suffered fracture in 2019 only, therefore, he was unable to move and could not appear when the case was called for hearing on 15.09.2021. As such, sufficient cause has been shown for his non-representation during the proceedings of the original suit on 15.09.2021, which is duly supported by the affidavit of the appellant. Hence, the impugned order is liable to be set aside and the present appeal deserves to be allowed. (4) On the other hand, learned counsel for the respondent supported the impugned order and prays for dismissal of the appeal on the ground that no sufficient cause has been shown by the appellant/plaintiff for his non-representation when the case was called for hearing on 15.09.2021. (5) We have heard learned counsel for the parties, considered their rival submissions made herein above and went through the record Page No.3 of 4 IN FA(MAT)-223-2024 with utmost circumspection. (6) A careful perusal of the record would show that from the date of filing of the original suit i.e. 01.07.2019, the appellant/plaintiff regularly appeared before the learned Family Court and on 15.09.2021 the case was fixed for recording of the evidence of the plaintiff, however, in the year 2019 only he suffered facture and he was unable to move and on 19.07.2021, he was also advised by the doctor of the SECL to take rest and to extend his leave from 08.07.2021 to 07.10.2021. As such, in the considered opinion of this Court, sufficient cause has been shown for not appearing when the case (i.e. Civil Suit No.12-A/2019) was called for hearing on 15.09.2021. Therefore, the learned Family Court is absolutely unjustified in rejecting the application for the appellant filed under Order 9 Rule 9 of CPC read with Section 05 of the Limitation Act for restoration of the original suit being Civil Suit No.12-A/2019, more particularly, when the respondent/defendant did not filed any affidavit controverting the aforesaid statement made by the appellant/plaintiff. (7) Accordingly, the application of the appellant/plaintiff filed Order 9 Rule 9 of CPC read with Section 05 of the Limitation Act is allowed and the original suit being Civil Suit No.12-A/2019 is restored to its original number for hearing and disposal in accordance with law. Page No.4 of 4 IN FA(MAT)-223-2024 (8) Consequently, this appeal is allowed to the extent indicated herein-above. No cost. (9) Let a certified copy of this order alongwith the original record be transmitted to the Family Court concerned for necessary information and action, if any. sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge s@if