Repeated non-appearance without sufficient cause bars restoration of a suit dismissed for want of prosecution.

The Cantonment Board instituted Suit No. 195-A/1995 seeking to restrain Mohammad Mustaque from raising unauthorised construction on the disputed land.

The suit was listed on 1 May 1997, 19 September 1997 and 20 January 1998, but there was no appearance on behalf of the plaintiff on any of those dates. The plaintiff again remained absent on 17 March 1998, resulting in dismissal of the suit for want of prosecution.

The Board thereafter filed an application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, seeking restoration of the suit. The Trial Court dismissed the application on 4 October 2006, finding that the explanation for non-appearance was insufficient and that the plaintiff’s clerk, though present in court in another matter, had not appeared in the suit.

The appellate court dismissed the appeal on 6 August 2008. The Board invoked the High Court’s jurisdiction under Article 227 of the Constitution, seeking quashing of the appellate order.

Whether the Trial Court erred in refusing to restore the suit dismissed for want of prosecution under Order IX Rule 9 read with Section 151 of the CPC?

Whether the appellate court’s order affirming the refusal of restoration warranted interference under Article 227 of the Constitution?

Whether restoration of the suit after the lapse of more than three decades would cause prejudice to the respondent?

The Court applied Order IX Rule 9 CPC, under which a plaintiff may seek restoration of a suit dismissed for default upon demonstrating sufficient cause for non-appearance.

Section 151 CPC preserves the court’s inherent powers but does not dispense with the requirement of a satisfactory explanation for repeated absence.

The Court exercised its limited supervisory jurisdiction under Article 227 of the Constitution, which permits interference only where the subordinate courts have acted without jurisdiction, committed a patent error, or failed to exercise jurisdiction properly.

The Court also considered the principles of delay, prejudice and finality of litigation.

It noted the petitioner’s reliance on Ramhit Agrawal v. Ashok Kumar Gehani, M.A. No. 1760/2017, decided on 4 September 2023, but did not find that decision applicable on the facts.

The High Court found that the petitioner’s absence was not an isolated or accidental default: it remained unrepresented on four successive dates between May 1997 and March 1998.

The Trial Court had examined the order-sheets and specifically recorded that the petitioner’s clerk was present in court in another matter on the date of dismissal but failed to appear in the present suit, demonstrating laxity rather than sufficient cause.

The appellate court independently considered the explanation and held it inadequate.

As both subordinate courts had considered the relevant facts and applied their discretion under Order IX Rule 9 CPC, no jurisdictional or patent error justified interference under Article 227.

Additionally, because the suit had been instituted in 1995 and more than 31 years had elapsed, restoring it at that stage would cause prejudice, loss and injury to the respondent.

Finding no ground for supervisory interference under Article 227, the Court dismissed the writ petition.

The order further stated that it would not preclude the respondent from pursuing any other remedy available in law.