Patna High Court
Smt. Janki DeviversusRam Lakhan Mukhiya and Ors
- Decided
- Disposal
- DISPOSED
- Bench
- S B P SINGH
Holding
The petition to set aside the dismissal is dismissed; the petitioner must file a proper petition under Order 9 Rule 4 CPC to seek restoration of the money suit.
Summary
The petitioner, Smt. Janki Devi, sought to set aside a Sub‑Judge’s order dismissing a miscellaneous application filed to restore Money Suit No. 03 of 2011, which had been dismissed for default because the plaintiff failed to file the required format of publication for substituted service. The petitioner argued that the trial court erred in applying Order 7 Rule 11 CPC and Section 151 CPC, contending that the correct procedure to restore a suit dismissed for default is under Order 9 Rule 4 CPC. The High Court examined the procedural history and held that the petitioner had indeed adopted the wrong remedy and that the trial court’s reliance on Order 7 Rule 11 was misplaced. Consequently, the Court directed the petitioner to file a fresh petition under Order 9 Rule 4 CPC for restoration of the money suit and disposed of the present application. Both parties were instructed to cooperate with the trial court in the forthcoming proceedings.
Issues considered
- Whether the order dismissing the miscellaneous application for default can be set aside.
- Whether the appropriate provision to seek restoration of a suit dismissed for default is Order 9 Rule 4 CPC rather than Order 9 Rule 13 or Section 151 CPC.
- Whether Order 7 Rule 11 CPC is applicable to the present situation.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 7 Rule 11, Order 9 Rule 13, Order 9 Rule 4, Section 151
Subjects
- Civil Procedure
- Restoration of suit
- Default judgment
- Substituted service
- Order 9 Rule 4
- Order 7 Rule 11
- Procedural law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1390 of 2017
======================================================
Smt. Janki Devi, Wife of Late Dayabant Pathak, Resident of Village -Pali,
Police Station-Ghanshyampur and District-Darbhanga.
... ... Petitioner/s
Versus
1. Ram Lakhan Mukhiya, Son of Late Kebal Mukhiya, Resident of Village
-Meswai, P.O.-Pali, Police Station-Ghanshyampur, District-Darbhanga.
2. Ram Chandra Mukhiya, Son of Jhauli Mukhiya, Resident of Village
-Meswai, P.O.-Pali, Police Station-Ghanshyampur, District-Darbhanga.
3. Anjani Kumar, Son of not Known, Sub Divisional Officer, Biraul, District-
Darbhanga.
4. Rakesh Kumar, Son of Not Known, the then Station Officer, Ghanshyampur
Police Station, Datbhanga.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Girish Chandra Jha, Advocate
For the Respondent/s : Mr. Krishna Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
ORAL ORDER
10 12-01-2026 Heard learned counsel for both the parties.
2. The present Civil Miscellaneous application has
been filed for setting aside the order dated 17.03.2017 passed by
learned Sub Judge, (Biraul), Darbhanga in Misc. Case No. 10 of
2016 whereby and whereunder the learned court below has
dismissed the Misc. Case No. 10 of 2016 for default on
24.02.2016, which was filed for restoration of Money Suit No.
03 of 2011.
3. Learned counsel for the petitioner submit that
petitioner has filed the Money Suit No. 03 of 2011 against the
defendant respondent in which despite of direction by the court,
Patna High Court C.Misc. No.1390 of 2017(10) dt.12-01-2026
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format of publication was not filed for issuance of service
against the defendant/respondent and due to which his case was
dismissed as default vide order dated 24.02.2016. To set aside
the aforesaid dismissed order plaintiff/petitioner filed Misc. Case
no. 10 of 2016 which was also dismissed in which it was held by
the trial court that there is no such provision to restore any case
dismissed under order 7 rule 11 and there is a provision to file
fresh suit.
4. From perusal of the order dated 24.02.2016, it
transpired that vide order dated 13.06.2014 plaintiff petitioner
was directed to file format of publication so that substituted
service be made against defendant/respondent which was not
filed and on repeated call none appeared on behalf of the
plaintiff/petitioner. Hence, the suit was dismissed for default. In
order to restore the aforesaid money suit no. 03 of 2011 plaintiff/
petitioner filed petition under Order 9 Rule 13 CPC and Section
151 of CPC, which is not correct provision of law because no ex-
parte decree was passed in the aforesaid money suit. The correct
provision was to file Misc. Case under Order 9 Rule 4 which has
not been filed in this case by the plaintiff/petitioner. So, plaintiff
petitioner has adopted a wrong procedure and court has also
indicated the wrong procedure in his impugned order i.e. Order 7
Patna High Court C.Misc. No.1390 of 2017(10) dt.12-01-2026
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Rule 11 CPC. Both the above mentioned procedural sections are
legally and factually wrong and not applicable in the facts of the
case.
5. So, in the aforesaid facts and circumstances,
plaintiff petitioner is directed to file appropriate petition under
Order 9 Rule 4 to restore the aforesaid Money Suit No. 03 of
2011 before the Trial court. The trial court shall take all
necessary endeavor to pass appropriate order within a period of
three months in accordance with law. Both the parties are also
directed to cooperate in the trial. The appeared defendant who
are respondent second set in this Misc. Case is also directed to
cooperate in the aforesaid case/proceeding before the learned
Trial Court.
6. Accordingly, the instant application stands disposed
of.
(S. B. Pd. Singh, J)
khushbu/-
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