Most. Kisni Devi And Ors vs Mahendra Yadav And Ors

The petitioners have filed the instant application under Article 227 of the Constitution of India challenging the order dated 18.05.2016 passed by the learned Additional Munsif, Madhepura in Misc. Case No. 5 of 2014.

Learned counsel for the petitioners submitted that the order impugned passed by the court below is bad in law as well as on facts. The court below ought to have allowed the miscellaneous application filed on behalf of the petitioners for restoration of the Title Suit No. 48 of 1998.

I have perused the order impugned. I find that Misc. Case No. 5 of 2014 was filed by the petitioner for restoration of Title Suit No. 48 of 1998. The said suit was filed by the husband of the petitioner no.1, which was dismissed on 12.07.2002 for want of prosecution. After the dismissal of the title suit, Misc. Case No. 2 of 2002 was filed by the husband of the petitioner no.1, which also was dismissed for want of prosecution on 09.04.2003. Thereafter, Misc. Case No.5 of 2014 was filed for restoration of the title suit. The plaintiff woke up from deep slumber after 12 years fropm the dismissal of the suit. No application for setting aside the dismissal, as provided under Order 9, Rule 9 of the Code of Civil Procedure (for short 'CPC'), was ever made.

Moreover, the period of limitation for making an application for restoration of a suit dismissed for default under Order 9, Rule 8 of the CPC is thirty days from the date of order of dismissal, the application for restoration of a miscellaneous case arising out of such application under Order 9, Rule 9 of the CPC would be governed by Article 137 of the Limitation Act, 1963 and, therefore, such application can be filed within a period of three years. Since the application filed by the petitioners in the court of Munsif was much beyond the period of limitation, the learned Munsif rightly rejected the same.

The application, being devoid of any merit, is dismissed.