Asha Ram @APPELLANT@Hash Pushkaran Brahmin Bhimji Ka Mohalla Vikas Samiti

This application for restoration has been filed by the applicant seeking restoration of S.B.Civil Misc. Application No.82/2016, which application in turn

was filed for recalling the judgment dated 1/12/2015 passed in S.B.Civil Second Appeal No.27/94 by a coordinate bench of this Court.

The Civil Misc. Application No.82/2016, as indicated hereinbefore, was filed against respondents Pushkarna Brahmin Bhimji Ka Mohalla Vikas Samiti

and legal representative of Shri Damodar Das i.e. 2/1 Udai Kishan and 2/2 Mool Raj. By order dated 29/8/2016, a coordinate bench ordered for

issuance of notice in the application seeking recalling and operation & effect of the order dated 1/12/2015 was stayed. On notice issued to respondent

2/1, it was reported that the said respondent had expired on 20/4/2015 and, therefore, time was granted on 27/9/2016 to take steps.

On 22/11/2016, another coordinate bench ordered that appropriate steps in respect of deceased respondent may be taken within a period of one week,

failing which the misc. application shall stand dismissed without reference to the Court.

On 24/11/2016 I.A.No.1684/2016 was filed on behalf of the applicant seeking recalling of the order dated 22/11/2016 mentioning that none of the

respondent had died and that service was complete.

Another application I.A.No. 68/2017 was filed by the applicant under Section 151 CPC read with Order XXII Rule 4 CPC for deleting the party

respondent no. 2/1 and bringing his legal representatives on record in misc. application indicating names of 2/1/1 Shravan Kumar Vyas and 2/1/2 Sunil

Vyas.

Another application I.A. No.74/2017 was filed under Order I Rule 10 CPC by Shravan Kumar Vyas and Sunil Vyas seeking impleadment as legal

representatives of deceased Udai Kishan.

One more application I.A. No. 93/2017 was filed seeking correction in application I.A. No. 1684/2016 pertaining to the fact about none of the

respondent having died, as in fact Udai Kishan had died.

Another application I.A. No. 232/2017 was filed by the applicant under Section 151 CPC seeking to consolidate all the prayers made in different

applications and seeking recall of the order dated 22/11/2016 and for restoration of application to its original number.

Another application I.A.No. 233/2017 under Order XXII Rule 9 CPC was filed seeking setting aside of abatement, if any.

All the above applications came up before this Court on 16/2/2017 and following order was passed by another coordinate Bench:

“16/02/2017

The petitioner has filed the applications (APPLC No. 1684/16), (APPLC No.68/17), (APPLC No.74/17), (APPLC No.93/17), (APPLC No.232/17)

and (APPLC No.233/17) in Misc. Application No. 82/16 which already stands dismissed in terms of the peremptory order dated 22.11.16 passed by

this Court.

Learned counsel appearing for the petitioner seeks permission to withdraw these applications with liberty to file appropriate application afresh, after

filing the application seeking restoration of the Misc. Application No. 82/16 which stands dismissed in terms of the peremptory order dated 22.11.16

passed by this Court.

Accordingly, the applications (APPLC No. 1684/16), (APPLC No.68/17), (APPLC No.74/17), (APPLC No.93/17), (APPLC No.232/17) and

(APPLC No.233/17), are dismissed as withdrawn with the liberty as prayed for.â€​

From the above order, it would be noticed that this Court treated Civil Misc. Application No.82/2016 as dismissed in terms of the peremptory order

dated 22/11/2016, permitted the counsel for the applicant to withdraw the pending applications with liberty to file appropriate application afresh seeking

restoration of Civil Misc. Application No.82/2016.

Pursuant to the order dated 16/2/2017 (supra), the present restoration application has been filed inter alia with the averments that peremptory order

dated 22/11/2016 regarding taking appropriate steps in respect of deceased respondent was passed by the Court, the application seeking recall of the

order dated 22/11/2016 was immediately filed on the ground that none of the respondent had died, the application under Order XXII Rule 4 read with

Order XXII Rule 9 CPC is being filed with the present application, earlier also an application under Order XXII Rule 4 and 9 CPC was filed in Civil

Misc. Application No.82/2016, another application under Order I Rule 10 CPC was filed by legal representatives of late Udai Kishan.

Submissions have been made that the applicant has a sound case on merits and in the interest of justice, Civil Misc. Application No. 82/2016 be

restored to its original number. Submissions have also been made that respondent no. 2/1 Udai Kishan had expired even before the judgment dated

1/12/2015 and that he was only a proforma respondent and was not the main contesting party and that even otherwise legal representatives of

Damodar Das was already on record. Averments have been made that default in compliance of the order passed by this Court was bonafide and that

no willful omission was made and, therefore, Civil Misc. Application No. 82/2016 be restored to its original number.

A reply raising preliminary objections has been filed by respondent no.1 inter alia raising several contentions including the fact that applicant has

suppressed material facts from the Court; has made averments which are incorrect to his own knowledge. Several submissions have been made

objecting to the maintainability of the application. Whereafter, further preliminary objections have been filed again raising issues regarding

maintainability of restoration application and the application under Order XXII Rule 4 and Order XXII Rule 9 CPC.

It was submitted by learned counsel for the applicant that the misc. application came to be rejected on account of not taking steps on account of death

of respondent no. 2/1 as impleaded in the application. It was fairly submitted that on passing of the order dated 22/11/2016, under misconception that

respondents including respondent no.2/1 were duly served, an application seeking recalling of the order was filed within two days and, thereafter,

when the correct fact came to the notice, steps were taken for bringing on record the legal representatives. It is submitted that the default in

compliance of the order dated 22/11/2016 occurred on account of above misconception and, thereafter, requisite steps were taken in accordance with

law and as no inaction/malafide is involved in the matter, the restoration application be allowed.

Learned counsel for the respondent no.1 vehemently opposed the submissions. Several objections regarding the form of application, provision under

which application has been filed i.e. Section 151 CPC and maintainability of the application on account of such defects were raised. Strong objections

were raised regarding merits of the application under Order XXII Rule 4 & 9 CPC filed along with the application seeking restoration and contending

that averments made therein were factually incorrect and that false submissions have been made in the application, besides non-impleading of several

other legal representatives of deceased Udai Kishan and, therefore, application under Order XXII Rule 4 & 9 CPC was also liable to be rejected.

Learned counsel appearing for the respondent no.2/1/1 & 2/1/2 and 2/2 have no objection to the restoration of Civil Misc. Application.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

So far as the objection regarding maintainability of the application on account of mentioning of a particular provision i.e. Section 151 CPC is

concerned, it is well settled that mentioning of a provision and/or the nomenclature given to an application does not and cannot determine the

maintainability of the application and as such the objection raised in this regard has no substance.

So far as the various objections pertaining to merits of the application under Order XXII Rule 4 & 9 CPC are concerned, at the stage of consideration

of application for restoration of proceedings which has been dismissed for non-compliance, the merits of the application, which has been essentially

filed pertaining to the substantive proceedings, need not be examined.

Coming to the merits of the present restoration application, the facts as noticed hereinbefore pertaining to the Civil Misc. Application No. 82/2016

clearly reveals a totally casual approach on the part of the applicant in repeatedly filing applications without understanding their implication and

apparently without looking into the record of the case. However, it is also a fact that after passing of the peremptory order dated 22/11/2016

immediate steps were taken in compliance of the said order, albeit based on misconception that the respondent no.2/1 had not died and, thereafter,

though essentially not of much substance, several applications were filed and steps were taken seeking to redeem the situation where occurred on

account of passing of the order dated 22/11/2016 and its non-compliance on the part of the applicant.

When all the applications filed subsequent to coming into effect of the peremptory order dated 22/11/2016 came up before the Court on 16/2/2017, all

the applications were permitted to be withdrawn with liberty to file fresh application.

The over all fact situation, as noticed hereinbefore, though does not present an ideal situation while prosecuting the case, it cannot be said that the

applicant did not act bonafide pursuant to the order dated 22/11/2016.

In view of the above discussion, the restoration application is allowed. S.B.Civil Misc. Application No.82/2016 is restored to its original number. The

application filed under Order XXII Rule 4 and 9 CPC by the applicant in the present proceedings being I.A. No.805/17 and the response filed by

respondent no.1 being I.A. No.1197/2017 along with documents produced by learned counsel for the respondent be taken out of the restoration

application and the same be dealt with in Civil Misc. Application No.82/2016.

S.B.Civil Misc. Application No.82/2016 be listed appropriately.