1 CGHC010176592024 2026:CGHC:42028 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 459 of 2024 1 - Smt. Pramila Thakur Wd/o Late Gupteshwar Thakur Aged About 58 Years R/o Gangapur Khurd, City - Ambikapur, District Surguja, Chhattisgarh,...(Plaintiffs) 2 - Surendra Thakur S/o Late Gupteshwar Thakur Aged About 38 Years R/o Gangapur Khurd, City - Ambikapur, District Surguja, Chhattisgarh 3 - Ranju Thakur D/o Late Gupteshwar Thakur Aged About 34 Years R/o Gangapur Khurd, City - Ambikapur, District Surguja, Chhattisgarh ... Petitioner(s) versus 1 - Anil Kumar Vishwakarma S/o Girija Vishwakarma Aged About 40 Years R/o Gandhinagar Ambikapur, District Surguja, Chhattisgarh (Defendants) 2 - State of Chhattisgarh Through Collector, Surguja, District Surguja (C.G.) 3 - Manish Kumar Agrawal S/o Hukum Chand Agrawal Aged About 30 Years (Advocate), R/o Rajeev Nagar, Namnakala, City - Ambikapur, District Surguja (C.G.) ... Respondent(s) For Petitioner(s) : Mr. Abhipreet Bajpai, Advocate on behalf of Mr. Anurag Bajpai, Advocate For Respondent No.2 : Mr. Rajkumar Sahu, Panel Lawyer For Respondent No.3 : Mr. A.K.Yadav, Advocate with Mr. Hemant Chandrasen, Advocate For Respondent No.1 None, though served. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board VAISHALI LUCKY NAGARIA Digitally signed by VAISHALI LUCKY NAGARIA Date: 2026.09.29 17:36:37 +0530 2 26/09/2026 1. Heard. 2. Present is a writ petition under Article 227 of the Constitution of India filed by the petitioner against the impugned order dated 09.04.2024 passed by learned Second Additional District Judge, Ambikapur, District Surguja in Miscellaneous Civil Appeal No. 8/2022, whereby the miscellaneous civil appeal filed by the petitioner has been dismissed and the order dated 04.04.2022 passed by learned Third Civil Judge Class-1, Ambikapur, District Surguja in M.J.C. No. 18/2019 has been affirmed. 3. Learned counsel for the petitioner would submit that the petitioners were the plaintiffs before the learned trial Court. They were prosecuting a suit for declaration of title and permanent injunction against the defendants bearing Civil Suit No. 162-A/2013. The said civil suit was fixed before the learned trial Court on 27.04.2019 for recording of the plaintiffs' evidence. However, on the date fixed before the learned trial Court, the counsel who representing the plaintiff had gone to Delhi for their personal work and though the plaintiffs were appeared in the Court premises but due to absence of their junior counsel, they could not made their appearance in the proceeding and the suit was dismissed for want of prosecution on that very date, that is on 27.04.2019. When the plaintiffs came to know that their counsel came back from Delhi, they filed their application under Order IX Rule 9 of CPC for restoration of the suit, explaining their absence in the suit. However, the learned trial Court rejected the application filed by the petitioners by holding that despite having present in the Court premises, the plaintiffs have not made their appearance on 27.04.2019 and the Court has dismissed the suit for want of prosecution and the plaintiffs have not explained and furnished any plausible explanation for their non-appearance. 3 4. He would further submit that the order dated 04.04.2022 passed by learned trial Court was challenged before the Appellate Court by filing miscellaneous appeal and the same has also been dismissed by the learned Appellate Court, which is under challenge in the present writ petition. He would further submit that on 27.04.2019, the plaintiffs were appeared in the Court premises for recording of their evidence. However, they remain outside of the Court room on the assurance given by their junior counsel and could not made their appearance in the proceeding. The plaintiffs were not negligent in prosecuting their suit. They were diligently prosecuting their suit and produced their witnesses and kept their witnesses present before the Court on the date fixed for recording of their evidence. However, due to bonafide mistake, suit has been dismissed. The suit was filed for declaration of title and permanent injunction and by dismissing the suit on default would prejudice their legal right, which requires adjudication on merits. Sufficient cause was shown by the plaintiffs for their non-appearance. The learned trial Court ought to have allowed their application and restored the suit in its original number. Yet the same has been dismissed only on the ground that the explanation of the plaintiffs is not sufficient. He would further submit that the learned Appellate Court has also passed the order in mechanical manner without considering the entire facts and circumstances of the case and the reasons for non-appearance of the counsel of the plaintiffs. Therefore, the impugned order may be set aside and the suit filed by the plaintiffs may be restored. 5. On the other hand, learned counsel appearing for the respondent No.3 opposes the submissions made by learned counsel for the petitioners and have submitted that the plaintiffs were negligent in prosecuting their suit, and despite presence in the Court premises, they have not 4 made their appearance, which clearly shows their negligence, and therefore, the order passed by learned trial Court is justified and needs no interference. 6. I have heard learned counsel for the parties and perused the document annexed with the petition. 7. The dismissal of the suit for want of prosecution on 27.04.2019 and filing of the application for restoration of the same under Order IX Rule 9 of CPC on 14.05.2019 is not in dispute. From perusal of the impugned orders, it transpires that the plaintiffs have explained that their counsel had gone to Delhi for their personal work and they were under assurance of their junior counsel that whenever their presence is required, their junior counsel will represent them in the proceeding and they remained sitting outside of the courtroom. Though the case was repeatedly called by the learned trial Court and in absence of any representation from the plaintiff, the same has been dismissed for want of prosecution. However, looking to the pleadings made by the parties and explanation submitted by the petitioners in their application, it cannot be said that they were negligent in prosecuting their suit. There is no inordinate delay in filing the application also, as the suit was dismissed for want of prosecution on 27.04.2019 and, within a short span of time, the application under Order IX Rule 9 of the Code of Civil Procedure was filed on 14.05.2019. Order IX Rule 9 of the Code of Civil Procedure provides for restoration of a suit dismissed for default, which reads as under: “9. Decree against plaintiff by default bars fresh suit.-(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when 5 the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it things fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 8. Though, the plaintiffs' absence on 27.04.2019 has been considered by the learned trial Court is not sufficient to restore the suit, however, there is no any previous negligence observed by the learned trial Court that the plaintiffs are regularly negligence in earlier proceeding also and it is only one instance on which they remain absent and their suit has been dismissed, therefore, this Court is of the considered opinion that instead of dismissing the suit for want of prosecution, the learned trial Court should have adjourned the proceeding for another day, even if no representation is made from the plaintiffs and when the suit was dismissed for want of prosecution and application was filed by the plaintiffs within a reasonable time, the learned trial Court should have allowed the application and restored the suit of the plaintiffs. 9. Accordingly, this Court is of the considered opinion that the impugned orders passed by learned Appellate Court as well as learned trial Court suffers from perversity and illegality and jurisdictional error, which requires interference, therefore, the order dated 09.04.2024 passed by learned Second Additional District Judge, Ambikapur in Miscellaneous Civil Appeal No. 8/2022 and order dated 04.04.2022 passed by learned Third Civil Judge Class-1, Ambikapur, District Surguja in M.J.C. No. 18/2019 are set aside. The application filed by the petitioners under Order IX Rule 9 of CPC is allowed and the Civil Suit No. 162-A/2013 is restored to its original number. 10. The parties are directed to appear before the learned trial Court on 15th 6 October, 2026. Thereafter, the learned trial Court is directed to proceed in the suit in accordance with law and decide the same on its own merits. The parties are also directed to cooperate for expeditious disposal of the suit and shall not take any unnecessary adjournment. 11. With the aforesaid observation, the present writ petition is allowed. Sd/- (Ravindra Kumar Agrawal) Judge Vaishali