Order 8

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. PANKAJ ARORA:
DISTRICT JUDGE-16, CENTRAL DISTRICT:
TIS HAZARI COURTS: DELHI
MCADJ no. 02/26
CNR No. DLCT01-0015192026
Shanti Devi .....……. Appellant
Versus
Jitender Singh & Ors. …........respondents
ORDER
1. Vide this order, this court shall proceed to dispose of
an application u/s 5 of Limitation Act r/w Section 151 of CPC
moved on behalf of appellant for condonation of delay in filing
the present appeal.
2. It is submitted by ld. Counsel for appellant that the
appellant has filed the present appeal challenging the two
impugned orders dated 13-01-2026 and 21-01-2025 passed by
the Ld. Civil Judge-01, District Central, Tis Hazari Court, Delhi.
On 26.09.2022, the Ld. Trial Court was pleased to dismiss the
suit of the appellant on account of non-appearance of the LRs’ of
the deceased plaintiff and for non-prosecution. Thereafter, two
separate applications under Order IX rule 9 CPC for restoration
of the suit were filed before the Ld. Trial Court, one filed on
behalf of the LRs of LR No. 3 (Late Smt. Harjinder Kuar) of the
deceased plaintiff and the another moved by the appellant/LR
No. 4 of the plaintiff namely Sh. Gurmukh Singh, praying for
restoration of the suit and thereafter, the respondents also filed
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reply to the said application and also stated that they have no
objection, if the application for restoration is being allowed by
the Ld. Trial Court, however, subject to cost. Accordingly, vide
order dated 22-01-2024, the Ld. Trial Court allowed the
application for restoration of the suit, subject to payment of cost
of Rs. 5,000/- to be paid by LR no. 3 of the deceased plaintiff
and the appellant/LR No. 4 of the deceased plaintiff to the
respondent no. 1 & 2 and Rs. 5,000/- to the respondent no. 3 & 4
and previous cost of Rs.10,000/- imposed upon the LRs of LR
No. 3 of deceased plaintiff vide order dated 31.05.2022. The Ld.
Trial Court had restored the suit to its original number and stage,
subject to payment of costs as mentioned and thereafter put up
the matter for further proceedings on 21.05.2024. Due to non-
compliance of the order dated 22.01.2024, the Ld. Trial Court
passed the impugned order dated 21.01.2025, whereby the suit
filed by the deceased plaintiff was dismissed again on account of
non-payment of the costs imposed upon the appellant/LR no. 4 as
well as LRs of LR no. 3 of deceased plaintiff. The delay of 11
months, i.e. 330 days in filing the present appeal is only caused
since the appellant has chosen wrong forum for challenging the
impugned order dated 21.01.2025 in shape of filing a
modification application before the Ld. Trial Court. It is,
therefore, prayed that the delay of 330 days in filing the appeal
may be condoned. In support of his arguments, Ld. Counsel for
appellant has relied upon the following judgments:
1. Mool Chandra Vs. Union of India & Anr, Civil Appeal no.
8435-8436/2024 of Hon’ble Supreme Court of India;
2. Inder Singh Vs. The State of Madhya Pradesh, 2025 LiveLaw
(SC) 339;
3. The State of Manipur & Ors. Vs. Koting Lamkang, Civil
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Appeal no. 8298/19 of Hon’ble Supreme Court of India;
4. Ramesh VS. Shikshak Sahakari Bank Limited, Nagpur & Ors,
writ petition no. 1456/06 of Hon’ble High Court of Bombay;
5. Jaswant Singh & Ors. Vs. Parkash Kaur & Anr., Civil Appeal
no. 9409/17 of Hon’ble Supreme Court of India.
The application is vehemently opposed on behalf of
respondents by filing reply and written synopsis. It is stated on
behalf of respondents no. 3 and 4 that the appellant/L.R. no. 4 of
deceased plaintiff earlier filed an application u/o. IX Rule 9 CPC
before the Ld. Trial Court seeking restoration of the present suit
and the same was allowed vide order dt. 22.01.2024 subject to
cost of Rs 5000/- to be paid by L.R.s. of LR No. 3 of deceased
plaintiff and LR no. 4 of deceased plaintiff to defendant no. 1
and 2 and Rs. 5000/- to defendant no.3 & 4 and previous cost of
Rs. 10,000/- imposed on LRs of LR No. 3 of deceased plaintiff
vide order dt. 31.05.2022. The appellant/LR no. 4 of deceased
plaintiff failed to pay the said costs imposed vide said order
dated 22.01.2024 within the stipulated time, hence, the Ld.
Predecessor Court of Sh. Sahil Khurmi, Ld. Civil Judge-01,
T.H.C., Delhi rightly dismissed the present suit vide order dt.
21.01.2025 with the remarks:-
"The present case has a checkered history. The present suit was
initially filed in the year 2007 and was dismissed in default for
non- appearance twice i.e. on 30.08.2010 and 26.09.2022. The
plaintiff has always been non-diligent in prosecuting the present
suit and same has wasted the precious judicial time of this Court
and also caused oppression to the opposite party by filing the
present suit.”
It is further stated that the appellant is chronic litigant and has
cleverly played with the Ld. Trial Court that is why the ld. Trial
Court has observed and remarked in its order regarding the
conduct of the appellant playing with the Court and to get the
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suit restored without paying the entire costs imposed a number of
times in the present suit. The appellant deliberately not complied
with the orders of the Ld. Trial Court for over a year by not
paying the costs imposed while passing order of restoration of
the present suit. The appellant never shown his willingness to
pay the costs imposed by the Ld. Trial Court on different
occasions for a period of almost 12 months and hence, the suit
restored was rightly dismissed after considering the malafide
intentions of the appellant and other legal heirs of Late Smt.
Shanti Devi and a strict order was passed in this regard. The
appellant deliberately filed the said application u/s. 151 CPC for
modification of order dated 21.01.2025 through the changed
counsel before the same Court which Ld. Court twice dismissed
the present suit. The appellant was well aware that the same
Court has no jurisdiction to again hear the same grievance of
restoration on behalf of the appellant when the appellant
deliberately not complied with the orders of the Ld. Trial Court.
It is further stated that it is well settled law that
"ignorance of law is no excuse". The appellant should have
immediately availed the proper course of law instead of
approaching the same Court of Law again and again. The
appellant has failed to deposit the said costs of Rs.20,000/-
within the stipulated period granted by the Ld. Trial Court as per
directions and orders and hence, the appellant cannot be allowed
to pay the same when the time granted a number of times for the
payment of costs have already expired. It has become clear on
the record that the appellant was neither careful nor diligent in
pursuing the present case and therefore the same was rightly
dismissed. The present appeal is not maintainable in the eyes of
law because the impugned order was passed while dismissing an
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application u/s. 151 CPC for modification of order dt.
21.01.2025. Therefore, the dismissal of application u/s. 151 CPC
is not an appealable order and this Hon'ble Court has no proper
jurisdiction to try, entertain and decide the present application
being barred by law. The same is not an appealable order as per
the provisions of Order 43 R.1 CPC. The impugned order was an
interlocutory order, therefore, if any remedies lies with the
appellant, it may only be with the Hon'ble High Court of Delhi
u/art. 227 of Constitution of India and not before this Hon'ble
Court. It is further stated that approaching the Ld. Trial Court
again and again for the same remedy was neither an alternative
remedy rather it was the malafide move by the appellant to waste
the precious time of the Ld. Court below and to unnecessarily
harass the answering respondents. By way of the present appeal,
the appellant has not challenged the order whereby his
application u/o. 9 rule 9 CPC was decided rather the appellant
has only challenged the order whereby an application u/s. 151
CPC was dismissed whereby the appellant sought modification
of order dt. 21.01.2025. The application U/o. 9 R. 9 CPC was
allowed subject to costs of Rs. 20,000/- cumulatively but the
same has deliberately not been paid by the appellant despite of
sufficient opportunities and time granted to the appellant in this
regard.
4. This court has heard arguments and perused the
record.
5. As regards the maintainability of the present appeal
challenging the order dated 13-01-2026 passed by Ld. Trial
Court whereby the application for modification of order dated
21-01-2025 for reviving and restoring the suit before the Ld.
Trial Court itself was dismissed is concerned. The answer lies in
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the observation of Hon’ble Supreme Court of India in the case of
Jaswant Singh & Ors. Vs. Parkash Kaur & Anr, Civil appeal no.
9409/2017 arising out of SLP (C) no. 28713/2013 as follows:
“28. When Section 141 expressly refers to proceedings under
Order IX, as miscellaneous proceedings and appeals from such orders are
expressly provided by Order XLIII Rule 1(c) &(d), it is clear that right of
appeal has been given, from the orders arising out of the miscellaneous
proceeding.
29. It is relevant to note that expression "proceedings" as
referred to in explanation contains only an inclusive definition. What is
explained in explanation is not exhaustive rather inclusive. Dismissal of an
application under Order IX Rule 13 C.P.C. in default, is an order passed in
miscellaneous proceedings, which is expressly included in Section 141
C.P.C. explanation. But whether the application dated 21.08.2002 to recall
the order dated 19.10.2001 is also a miscellaneous proceeding, covered by
miscellaneous 'proceedings' under Section 141 C.P.C. The answer has to be
'yes' thus, application dated 21.08.2002 is also a miscellaneous proceeding
in which proceeding, the procedure. prescribed in the Code for suits is to be
followed.”
Since the appellant instead of filing an appeal against
the order dated 21-01-2025 chose to challenge the said order by
moving a modification application for reviving and restoring the
suit before Ld. Trial Court, which was dismissed vide order
dated 13-01-2026, the right of the appellant to file appeal against
the order dated 21-01-2025 cannot be said to be lost in view of
following observation of Hon’ble Supreme Court in the case of
Jaswant Singh & Ors. Vs. Parkash Kaur & Anr. (supra) as
under:-
“37. No one doubts that when first application, which sought to
set aside the dismissal of the suit, was dismissed in default and appeal
would lie under Order XLIII Rule 1 (c) 310 C.P.C. which has also been held
by the Full Bench of High Court of M.P(supra). Because, the applicant or
his legal heirs immediately, did not file an appeal and sought to get the order
recalled to revive the application, the right of appeal cannot held to be lost”.
In view of the foregoing discussion, the application
u/s 5 of Limitation Act r/w Section 151 of CPC moved on behalf
of appellant for condonation of delay in filing the present appeal
is hereby allowed.
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Announced in the open Court
on 21-09-2026
(PANKAJ ARORA)
DISTRICT JUDGE-16/ CENTRAL:
TIS HAZARI COURT:DELHI/ 21-09-2026
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