Page No.# 1/9 GAHC010274522018 2026:GAU-AS:14040 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : FAO/55/2024 SHRI GHANSHYAM DAS DHIMAN P.O. HALLESWAR TEZPUR-784104 ASSAM VERSUS UNION OF INDIA REP. BY THE GARRISON ENGINEER, TEZPUR-784001 Advocates for the appellant : S. Ali ..Advocate. Advocate for the respondents : Mrs. A. Gayan BEFORE HON’BLE MRS. JUSTICE YARENJUNGLA LONGKUMER Date of hearing :22.09.2026 Date of judgment :22.09.2026 Page No.# 2/9 JUDGMENT & ORDER (ORAL) Heard Mr. S. Ali, learned counsel appearing for the petitioner/ appellant. Also heard Mrs. A. Gayan, learned C.G.C. for the respondents. 2. This appeal has been preferred under Order 43/A Rule 1 of CPC against order dated 19/03/2018 passed in Misc (J) Case No. 12/2006 by learned Civil Judge, Sonitpur, Assam under order 9, Rule 9 read with Section 151 of the CPC. 3. The facts leading to the filing of the instant appeal is that the petitioner is a registered contractor of the military engineering services under the Defence Department of the Government of India. He was allotted a Contract No. GE/TEZ/55, of 1982-83 and IAFW-2249. Some differences and disputes arose between the parties pertaining to the execution of the said contract and a sole arbitrator was appointed to decide the disputes. The arbitration award was published on 10.06.1994, leaving undecided some of the terms of reference. Thus, the petitioner filed a petition under Section 16 of the Arbitration Act of 1940 for remitting the said award back to the arbitrator to decide the remaining issues which were left undecided. The said petition under Section 16 of the Arbitration Act of 1940 was registered as money suit (Arb) 13/94 and the learned Court after hearing the parties' vide judgment and order dated 25.09.1996 remitted the said award for reconsideration to the sole arbitrator and directed the arbitrator to publish his award within 6 months from the date of receipt of the order. However, the arbitrator sent back the award without reconsideration and as such the Court vide its judgment and order dated 01.06.1998 held the said award to be void and thus the disputes remained undecided. Page No.# 3/9 4. Thereafter the petitioner filed another application under Section 8 and 20 of the Arbitration Act of 1940 for appointment of a new arbitrator to decide the disputes and the Court was pleased to register the said case as Title Suit No. (Arb), 3/1999. 5. The opposite parties entered appearance and filed their objections. The petitioner also filed an application before the Court to call for the records of the money suit (Arb) 13/1994 as the same was relevant and the Court allowed the prayer. However, the said records could not be traced out for a long time. As the matter was pending thus, the learned Court below dismissed the Title Suit No. (Arb) 3 of 1999 for default by the order dated 25.03.2004, and citing the reason as default of the petitioner. 6. Thereafter, the petitioner filed an application before the learned Civil Judge Sonitpur, under Order IX Rule 9 of the CPC praying for restoration of the Title Suit No. (Arb) 3/1999 which was registered as Misc (J) Case 12/2006. The said application under Order IX Rule 9of the CPC was accompanied by an application registered as Misc (J) Case 11/2006 praying for condonation of delay in filing the application under Order IX Rule 9 of the CPC. However, the Misc (J) Case 11/2006 and Misc (J) Case 12/2006 were both rejected by the Civil Judge, Sonitpur by an order dated 18.08.2007. 7. The petitioner/appellant herein preferred an appeal before this Court against the rejection order dated 18.08.2007 and the same was registered as FAO No.28/2010. 8. This Court allowed the FAO No. 28/2010 by judgment and order dated 27.07.2017, holding that an important record which was necessary for disposal of the suit was not traceable and, therefore, the matter was pending for a long Page No.# 4/9 time and also because of the fact that due to the illness and demise of his parents, the appellant had to leave for Chandigarh and only after coming back from Chandigarh, the petitioner could file the petition under Order IX, Rule 9 of the CPC accompanied with the petition for condonation of delay. This Court also held that the appellant was able to show sufficient causes for the delay and in view of such findings, the order of dismissal dated 18.08.2007 was set aside. 9. Thereafter, the learned Court below considered the application of the appellant herein i.e, Misc (J) No.12 of 2006 under Order IX, Rule 9 of the CPC. However, the learned Court below came to a finding that the petitioner/appellant could not give any satisfactory reason for his absence and for his non-appearance. It was also held by the learned Court below that the petitioner/appellant had not shown any reasons as to why he could not be present on the date when the suit was dismissed and in fact in the application filed by him under Order IX, Rule 9, the petitioner/appellant had only stated that the dismissal was due to the fault of the Court and not due to the fault of the petitioner/appellant. 10. The learned Court below held that Order IX, Rule 9 clearly specifies that the petitioner had to satisfy the Court that there was sufficient cause for his non-appearance, when the suit was called on for hearing. Upon such findings, the Misc (J) Case No. 12 of 2006 was dismissed by the impugned order dated 19.03.2018. 11. Being aggrieved the appellant herein has preferred this instant appeal. The main ground taken by the appellant herein is that this Court in judgment and order dated 27.07.2017 had already held that the appellant/petitioner, has been able to show sufficient cause for the delay in filing the restoration application. Page No.# 5/9 12. The learned Counsel for the appellant submits that the reasons for the delay in filing the restoration application in Misc (J) Case No. 11 of 2006 were the same grounds which had been taken in the restoration application, i.e., Misc (J) Case No. 12 of 2006. However, the learned Court below did not consider this important aspect and has dismissed the restoration application. He submits that the learned Court below should have taken note of the judgment and order of this Court passed in FAO No. 28/2010, wherein this Court has rightly held that the records which were necessary for disposal of the suit was not traceable for a long time and had also taken note of the fact that because of the illness and death of the parents of the appellant, the appellant/petitioner had to leave for Chandigarh and was away for a long time. The learned counsel for the appellant has relied on the case of (i) Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji and Others reported in (1987) 2 SCC 107. (ii) Yare Tali & Others vs. Tapak Tali reported in (2002) 3 GLR 376. (iii) Sankha press Pvt. Ltd. (M/s) vs. Assam Financial Corporation reported in (2014) 5 GLT 33. (iv) Tarun Gogoi vs. Himanta Biswa Sarma & Ors. reported in (2017) 4 GLT 1. 13. In view of the submissions made above, the learned counsel for the appellant prays that the impugned order dated 19.03.2018 may be set aside and the Title Suit Arbitration No. 3/1999 may be restored back to file and heard on merits as the appellant should be given an opportunity of presenting his case before the learned Court below on merits. 14. The learned Counsel for the appellant further submits that the pleadings of Page No.# 6/9 Misc (J) Case No. 12 of 2006 was drafted by his counsel and further, the counsel also did not inform him about the listing of the case or dismissal of the case on time. It is further submitted that the fact remains that appellant was away in Chandigarh at the relevant point of time due to the sickness and demise of his father and subsequently his mother. He submits that for the fault of his counsel and for the negligence of his counsel, he should not be allowed to suffer. 15. The learned CGC appearing for the respondents has opposed the contention of the learned counsel for the appellant, firstly on the ground that the petition filed by the appellant herein under Order IX Rule 9 of the CPC, which is registered as Misc (J) Case No. 12 of 2006, does not state any reasons for the non-appearance of the appellant when the suit was called for hearing. She submits that it is the mandate of Order IX, Rule 9 that the appellant has to satisfy the Court that there was sufficient cause for his non-appearance. She has taken this Court to the pleadings of Misc (J) Case No. 12 of 2006, specifically at paragraphs 13, 14 and 15, wherein the petitioner/appellant has stated that the dismissal of Title Suit Arbitration No. 3/1999 is not due to any fault of the petitioner, but it is a mistake committed by the Court, which, if not recalled and set aside, will cause huge and substantial loss to the petitioner. It was also pleaded that the order of dismissal of Title Suit Arbitration No. 3/1999 attributing absence of petitioner on that day is not to be construed as a ground of dismissal, because without the record of Money Suit Arbitration No. 13/1994, the petitioner would not have been able to file his affidavit of his witnesses. 16. It is evident that in the pleadings of Misc (J) Case No.12 of 2006, the petitioner has not stated anywhere that he was prevented by sufficient cause Page No.# 7/9 for not appearing before the Court on that day. And he has not made any explanations for his absence. Therefore, the petitioner/appellant has not been able to show any sufficient cause for non-appearance under Order IX, Rule 9 of the CPC. And hence, the learned Court below has rightly dismissed the application under Order IX, Rule 9 CPC. 17. Learned CGC further submits that it is apparent from the records that the absence of the petitioner/appellant was intentional, on 25.03.2004 as the petitioner/appellant and his counsel stated that did not appear on that day, as the old records were not available. Hence, the appellant at this stage cannot plead that his non-appearance was not intentional. 18. This Court has considered the submissions of the counsel for the parties, perused the records and examined the judgments relied upon. 19. In the case of Tarun Gogoi (Supra) a coordinate bench of this Court, by relying on the case of Parimal, versus Beena @ Bharti reported in (2011) 3 SCC 545, has held that a discretion has been given to the Court, under the provision of Order IX, Rule 9 of the CPC, to examine the sufficiency of the cause shown. The Court further held that the ambit and scope of the term “sufficient cause” is wide to cover any causes where from no act of negligence by the party asking for the relief can be inferred. 20. It is settled law that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. This Court after perusing the records and specifically the pleadings of the petitioner/appellant in Misc (J) Case No. 12 of 2006 as well as the instant appeal, is of the view that the pleadings are no doubt poorly drafted and that Page No.# 8/9 the appellant/petitioner has not been able to explain in his pleadings as to what attributed to his non-appearance on 25.03.2004. However, this Court also cannot ignore the fact that the petitioner has explained all along that he was away in Chandigarh for a long time due to the sickness and demise of his parents and that his counsel before the Court below did not inform him about the dismissal of the Title Suit (Arbitration) No.3 of 1999. 21. No doubt under Order IX Rule 9 of the CPC, the petitioner/appellant was required to show sufficient cause for his non-appearance so as to restore the suit. If this Court goes by his pleadings alone, we find that petitioner/appellant has attributed the dismissal to the mistake committed by the Court and not due to any fault of the petitioner. However, on the other hand, the learned counsel for the appellant has submitted that the petitioner/appellant being a lay person could not have known about the implications of the said pleadings and for the fault of his counsel the appellant should not be made to suffer. 22. This Court has also taken note of the fact that in FAO No. 28 of 2010 this Court by judgment and order dated 27.07.2017 had already examined the reasons for the delay in filing the restoration application. In the judgment and order dated 27.07.2017, this Court has also arrived at the finding that technical considerations should not get in the way of substantial justice. 23. Having considered the matter in its entirety and having regard to the fact that the petitioner/appellant should not be made to suffer for the wrong advice or negligence of his counsel, and keeping in view that the appellant has a right to project his case and to get it considered on merits, the instant the appeal is Page No.# 9/9 allowed. 24. As a result the impugned order dated 19.03.2018 passed in Misc (J) Case No. 12 of 2006 is quashed and set aside, the Title Suit Arbitration No. 3 of 1999 is restored to file and the parties are directed to appear before the learned Civil Judge Sonitpur, Tezpur on 03.11.2026 and, thereafter, the learned Court below shall proceed for hearing of the case on merits. 25. The Registry is also directed to send back the Trial Court Records. JUDGE Comparing Assistant