CR/14/2025 on 13 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Civil Revision No.14 of 2025

Decided on: 13th October, 2026

Krishan Chand

...Petitioner

versus

Om Prakash and others

...Respondents

Coram

Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge.

Whether approved for reporting?1

For the petitioner: Mr. Prikshit Rathour, Advocate.

For the respondents: Mr. Sudhir Thakur, Senior Advocate with Mr. Karun Negi, Advocate for respondents No.1 to 3.

Mr. Bhim Raj Sharma, Advocate for respondent No.4.

Jiya Lal Bhardwaj, Judge (Oral)

The petitioner feeling aggrieved by the order dated 11.08.2016 passed by the learned Civil Judge, (Jr. Division)-I, Solan, Himachal Pradesh, whereby his application for restoration of the civil suit was dismissed in default, which order came to be affirmed in appeal on 18.10.2024, had filed appeal before the learned Additional District Judge-1 has preferred the present revision petition.

2. The petitioner had filed a suit against the respondents for declaration and permanent prohibitory injunction in respect of land comprised in old Khata/Khatauni No.98/248, Khasra Nos. 884, 1 Whether the reporters of Local Papers may be allowed to see the judgment?

885, 1066/888, and 1067/888, kitas 4 measuring 1312 square meters, situated in Mauja Dehun, Tehsil and District Solan, H.P. It was averred in the civil suit that the father of the petitioner had executed a Will in his favour and has bequeathed all his properties, disowning respondents No.1 and 2 from his properties, but the said Will executed by him did not come in the hands and possession of the petitioner till October, 2006. The father of the petitioner died on 13.01.1991 and on the basis of the Will, he sought a decree for declaration that the mutation No.402 sanctioned in favour of respondents No.1 and 2, sale deed dated 28.03.2002 duly registered in the office of Sub-Registrar, Solan as document No.326 in Bahi No.1, volume No.36 at page 3 on 30.03.2002 executed by respondent No.2 in favour of respondent No.4 and mutation No.327 and 751 respectively sanctioned on the basis of these sale deeds on 08.05.2002 in favour of respondents No.3 and 4 and the subsequent revenue entries in the revenue record based upon it with respect to suit land to the extent of 2/3rd share are totally wrong, illegal, unlawful, null and void and are not binding upon the rights, title and interest of the petitioner and the same does not create any rights, title and interest in favour of the respondents. A decree for declaration to the effect that the petitioner is absolute owner in possession of the suit land free from all charges and encumbrances by virtue of the Will dated 07.01.1990 and the revenue entries contrary to it are totally wrong, null and void abinitio and not binding on the petitioner had also been sought. Further, a decree for permanent prohibitory injunction restraining the respondents from interfering in the possession of the petitioner over the suit land, changing the nature of suit land, cutting and removing any tree whatsoever was also sought.

3. The respondents filed written statement to the civil suit filed by the petitioner and raised preliminary objections regarding maintainability, limitation, the petitioner is estopped from filing the present suit, the suit is barred under Section 10 of the Code of Civil Procedure (in short “CPC”) and under Order 2 Rule 2 of the CPC as earlier a previous suit was filed by the petitioner against Om Prakash and Kamla Devi separately and against Shobha Thakur and Nisha Rani, respondents No.3 and 4 by way of separate suit and the same suits were filed by the petitioner in the year 2002, 2003 and 2004, which were pending before the Civil Judge (Senior Division), Solan and all the suits are previously instituted with respect to the same subject matter and alternatively suit is barred by the principle of res judicata under Section 11 of the CPC too and the petitioner has no cause of action to file and maintain the suit. On merits, the contents of the suit were denied.

4. After completion of the pleadings, the learned trial Court framed the issues in the civil suit on 18.09.2007. Thereafter, on numerous dates, the matter was listed for recording the evidence of the petitioner and the petitioner neither produced his evidence nor took steps to summon the witnesses.

5. On 22.08.2008, the petitioner was granted an opportunity to lead evidence subject to costs of Rs.200/-, since no steps were taken by him. The matter was listed before the trial Court on 07.01.2013, when no PWs were present as no steps were taken. Time was prayed to produce the evidence and the matter was ordered to be listed on 30.04.2013. However, on 30.04.2013, the Presiding Officer was on leave and the matter was listed for effective hearing on 03.06.2013. On 03.06.2013, neither the PWs were present nor steps were taken and adjournment was prayed. After respite, neither the plaintiff nor his counsel appeared and the trial Court had dismissed the suit in default for non-appearance.

6. The petitioner filed an application for restoration of the civil suit which was dismissed in default on 03.06.2013 on 21.09.2013.It was averred in the application that he did not have any knowledge about the date of hearing on 03.06.2013 and, therefore, could not attend the Court. The petitioner thereafter inquired from his counsel about the hearing of the case, who told that the case was dismissed in default on 03.06.2013 with the reason that he could not hear the call of the case and as a result of which he could not appear in the Court at the relevant time when the case was called. It was further averred that non-appearance of the petitioner and his counsel resulted into the dismissal of the civil suit in default. The petitioner came to know about the dismissal of the civil suit in default only on 05.09.2013, on which date, he applied for the certified copy of the dismissal order through another Advocate. The copy of the order was supplied on 12.09.2013. He was remained under the bonafide belief that the certified copy of the dismissal order is required to be filed with the restoration application and that the same could be filed within 30 days of the supply of the copy of the dismissal order. The petitioner contacted the counsel to file restoration application, who immediately prepared the same and a separate application for condonation of delay in filing the application was also filed. The applicant is a poor person and had every intention to pursue the case, which had been filed on the basis of the Will of his father.

7. The respondents filed reply to the application and in preliminary objections averred that the application is not maintainable since the same has not been filed under the relevant provisions of the law and is liable to be dismissed. On merits, the contents that the case was dismissed in default on 03.06.2013 for the reason that the counsel could not hear the call of the case and as a result he could not appear in the Court at the relevant time when the case was called, are denied. It was also denied that the petitioner came to know about the dismissal of the case in default only on 05.09.2013, on which date, he got applied for the certified copy of the order. It was also denied that the absence of the petitioner or his counsel was neither deliberate nor intentional, but due to the circumstances stated in the application and as such, prayed for dismissal of the application.

8. The learned trial Court on the basis of the pleadings made in the application framed issues on 17.03.2015. After recording the evidence, the application for restoration of the civil suit was dismissed on the ground that the petitioner had not examined his counsel before the Court. Further the petitioner himself had admitted that on the date when the case was fixed for hearing and dismissed in default, he was very much present in the Court. It was further observed that since no explanation has been provided for the delay from 12.09.2013, when copy was supplied till 27.09.2013, no sufficient ground for condoning the delay has been explained and as such, the application for restoration of the suit was dismissed.

9. The petitioner feeling aggrieved by the said order passed by the learned trial Court, preferred an appeal before the learned Additional District Judge-1 Solan, District Solan, who vide judgment dated 18.10.2024 had dismissed the appeal, affirming the order passed by the trial Court, whereby the application filed by the petitioner was dismissed.

10. The petitioner feeling aggrieved by the order of dismissal of his application for restoration, which order has been affirmed by the learned Appellate Court, has preferred the present petition, inter alia, on the grounds that the trial Court has not passed an order separately on the application filed under Section 5 of the Limitation Act, but has decided the application for restoration both on the grounds of limitation as well as on merits, which could not have been done as per the settled preposition of law. The Appellate Court has also erred in accepting the finding of learned trial Court by concluding that the petitioner has failed to prove sufficient grounds to condone the delay in filing the application and there were sufficient grounds to condone the delay in filing the restoration application. It has further been averred that the Appellate Court was much influenced from the findings that the application was time barred while deciding the same on merits. The learned Courts below ought to have condoned the delay in filing the

application. It is further submitted that the property is worth crores of rupees and the Courts below have wrongly ignored the statement of the petitioner, which was duly supported by an affidavit that his counsel could not appear on the date fixed for the reasons detailed in the application. No prejudice would be caused in case the orders under challenge are set aside by this Court and further the petitioner is granted an opportunity to lead his evidence.

11. On the other hand, learned senior counsel appearing for the respondents has supported the order passed by the learned trial Court, whereby the application filed by the petitioner for restoration of the civil suit, which was dismissed in default has been dismissed, which stands affirmed by the Appellate Court. The learned senior counsel has also argued that since both the Courts below have concurrently found that there is no explanation given in the application for restoration of the civil suit, which was dismissed in default, this Court while exercising revisional jurisdiction may not like to interfere with the reasoned orders.

12. I have heard the learned counsel for the parties and also perused the record carefully.

13. As per the averments made in the application for restoration of civil suit, it has been stated that the petitioner did not have any knowledge about the date of hearing on 03.06.2013 and, therefore, could not come to attend the Court. As per the record, on 30.04.2013, the Presiding Officer was on leave and the matter was listed on 03.06.2013 for effective hearing. As per the order dated 03.06.2013, it has been recorded that neither PWs present nor steps have been taken. Adjournment prayed. After respite, neither the petitioner nor his counsel appeared and the civil suit was dismissed in default for non-appearance on 03.06.2013.

14. No doubt, as per the averments made in the application, no cogent and sufficient reasons were assigned for restoration of the civil suit, however, keeping in view the fact that the petitioner was basing his claim, on the basis of a Will executed by his father bequeathing the property in his favour and the delay in filing the application was not much, the learned trial Court, instead of rejecting the application for restoration of the civil suit ought to have allowed the same subject to costs. However, instead of adopting that recourse, the learned trial Court dismissed the application for restoration of the civil suit. The Appellate Authority had also affirmed the said order without considering the fact that the petitioner had instituted the suit on the basis of a Will executed in his favour by his father.

15. As already noticed above, no doubt the explanation which has come forth in the application for restoration of the civil suit is not convincing, but keeping in view the fact that the property involved in the suit is worth crores of rupees, I am of the considered opinion that the petitioner should be given one chance to produce the evidence, so as to prove his case. It is settled law that the Courts are meant to advance substantial justice and not to reject the claims on technicalities.

16. In the present case, the trial Court had dismissed the application for restoration of the civil suit, which was dismissed in default on 03.06.2013, whereas the application filed by the petitioner was instituted on 21.09.2013. Had there been very huge delay in filing the application of a year or so, the trial Court could have rejected the application, but since there was not much delay in filing the application for restoration of the civil suit, which was instituted by the petitioner on the basis of Will, the jurisdiction which has been exercised by the learned trial Court while dismissing the application for restoration, has caused material prejudice and injustice to the petitioner and, therefore, this Court, while exercising the power of revision vested under Section 115 of the CPC, is of the considered view that the order which has been passed by the learned trial Court thereby dismissing the application for restoration on 11.08.2016 and thereafter affirmed by the learned Appellate

Court while dismissing the appeal on 18.10.2024, are unsustainable in law and as such, both the orders are quashed and set aside.

17. Consequently, the present revision petition is allowed, however, subject to costs of Rs.55,000/- out of which, Rs.30,000/- shall be paid to the respondents and Rs.25,000/- shall be deposited in the Poor Patient Treatment Fund Account No.34256228603, IFSC Code SBIN0004054 at SBI IGMC, Shimla. It is made clear that the petitioner shall produce the entire evidence on two dates. Since the suit instituted by the petitioner is of the year 2006, the petitioner shall produce his entire evidence within two months from the first date of appearance before the learned trial Court.

18. The parties are directed to appear before the learned trial Court on 28.10.2026. Record of the learned Courts below be transmitted forthwith.

(Jiya Lal Bhardwaj) 13th October, 2026

Judge (naveen)