OMDEO BALIRAM MUSALE & ORS.versusPRAKASH RAMCHANDRA MAMIDWAR & ORS.

            [2024] 1 S.C.R. 1219 : 2024 INSC 93

             Omdeo Baliram Musale & Ors.
                         v.
         Prakash Ramchandra Mamidwar & Ors.
  (Petition for Special Leave to Appeal (C) No. 11258 of 2015)
                          24 January 2024
[Pamidighantam Sri Narasimha and Aravind Kumar, JJ.]

                       Issue for Consideration
  Whether the High Court erred in dismissing the application for
  restoration of revision petition (in a suit for declaration) and
  accompanying application for condonation of delay.

                              Headnotes
  Suit – Suit for declaration related to a property dismissed
  for default – Application for restoration dismissed – Appeal
  dismissed – Revision petition dismissed by High Court
  – Application for restoration of the revision petition and
  condonation of delay dismissed by High Court – SLP
  thereagainst.
  Held: The facts indicate that the suit that was filed in 1982 never
  took off as even summons were not issued – The suit that was
  filed in the year 1982 relates to an alleged unauthorized sale more
  than four decades back – The suit has virtually become infructuous
  for more than one reason – SLP dismissed. [Paras 13, 15]

                          List of Keywords
  Suit for declaration; Revision petition; Application for restoration;
  Condonation of delay; Default; Summons; Infructuous.

                         Case Arising From

  EXTRAORDINARY APPELLATE JURISDICTION : Special Leave
  Petition No. 11258 of 2015

  From the Judgment and Order dated 05.11.2014 of the High Court
  of Judicature at Bombay at Nagpur in CA (CAO) No. 1109 of 2013
  in MCA St. No. 12275 of 2013 in CRA No. 284 of 2003
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                            Digital Supreme Court Reports


                                Appearances for Parties
      Ms. Jayshree Satpute, Ms. Manju Jetley, Advs. for the Petitioners.
      Satyajit A. Desai, Siddharth Gautam, Abhinav K. Mutyalwar, Gajanan
      N Tirthkar, Vijay Raj Singh Chouhan, Luv Kumar, Ananya Thapliyal,
      Ms. Anagha S. Desai, Advs. for the Respondents.

                     Judgment / Order of the Supreme Court
                                             Order
1.    This Special Leave Petition is against the decision of the High
      Court1 in dismissing an application for restoration of a Civil Revision
      Application and the accompanying application for condonation of
      delay in sheer exasperation. The facts are as follows:
2.    A simple prayer was made by the petitioners in a suit for declaration
      that the property belonging to the joint family, but their father wrongly
      sold it to third parties through a sale deed in the year 1980.
3.    The suit came to be dismissed for default for not paying the process
      fee for service of notice on the LRs. of defendant no.2. The petitioners
      therefore filed an application for restoration in 1993.
4.    This application for restoration was decided after seven years and the
      Trial Court on 04.02.2000 dismissed the application on the ground
      that it was filed under Order IX Rule 9 of the CPC whereas it ought
      to have been filed under Order IX Rule 4 of the CPC as the suit
      was originally dismissed under Order IX, Rule 2 of the CPC. The
      petitioner filed an appeal against this order.
5.    After three years, the appeal came to be dismissed on 25.06.2003.
      The petitioner then filed a revision petition in which the High Court
      issued notice.
6.    While the revision was pending before the High Court, the petitioner
      was unable to serve respondent no. 8 for a long time due to some
      issue about change in the names. Having waited for long, High Court
      passed a peremptory order on 01.12.2005 that if the objections were
      not removed within a period of two weeks, the revision petition would
      stand dismissed without reference to the Court.


1    In CA No. 1109/2013 in MCA No. 12275/2013 in CRA No. 284/2003 dated 05.11.2014.
[2024] 1 S.C.R.                                                         1221

         Omdeo Baliram Musale & Ors. v. Prakash Ramchandra
                         Mamidwar & Ors.

7.   On 12.12.2005, the petitioner’s advocate is said to have prepared
     an application for change of name of respondent no. 8 and a copy
     was also served on the respondent’s advocate but in the meanwhile
     the peremptory order came into operation and the revision petition
     came to be dismissed on 15.12.2005.
8.   Despite the dismissal of the revision petition, the petitioner filed the
     application for change in name of respondent no. 8 on 21.12.2005.
9.   The sad story continues. In 2011, i.e. after six years, an M.A. for
     restoration was filed by the petitioner through his son. The son’s
     affidavit was taken on record. However, the High Court by order
     dated 03.07.2013 dismissed the M.A. only on the ground that it was
     not moved by the original party to the revision petition.
10. In view of the above referred order, another application was filed in
    2013 by the petitioner himself for restoration of the revision petition and
    condonation of delay. The High Court by the order dated 05.11.2014,
    impugned herein, dismissed the application for restoration.
11. The story does not stop here. The petitioner then filed a Special
    Leave Petition against the above-said impugned order and notice
    was issued by this Court on 06.04.2015.
12. From 2015, the matter has been pending before this Court.
    Proceedings in the case indicate that the SLP was listed several
    times between 2015 and 2024 but could not be heard as notice on
    some respondents was not complete.
13. The above referred facts indicate that the suit that was filed in 1982
    never took off as even summons were not issued. It might not be
    surprising for lawyers, judges and those who are acquainted with civil
    court proceedings. The real danger is when we accept this position
    and continue with it as part of a systematic problem. Until and unless
    we believe that this situation is unacceptable and act accordingly, the
    power, authority and jurisdiction of Courts to address simple reliefs
    of citizens will be consumed and destroyed by passage of time. This
    is not acceptable at all.
14. There must be a solution, idea and resolve to rectify this situation
    and ensure that simple, quick and easy remedies are available to
    correct an illegality for a rightful restitution. We have referred to all
    this only to take note of what has happened and take steps to rectify
    it in the time to come.
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                      Digital Supreme Court Reports


15. Coming back to this case, we have noticed that the suit that was
    filed in the year 1982 relates to an alleged unauthorized sale by
    father more than four decades back. The suit has virtually become
    infructuous for more than one reason. The Special Leave Petition
    is dismissed.
16. Pending application(s) shall also stand disposed of.


     Headnotes prepared by: Bibhuti Bhushan Bose      Result of the case:
                                                         SLP dismissed.