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Kusumben Indersingh Dhupia v. Sudhaben Biharilalji Bhaiya and Anr.

Civil Appeal · 2019 INSC 42Decided 9 Jan 2019
Civil Appeal No. 230 of 2019
Justice R. Banumathi · Justice Indira Banerjee

Background

The appellant had filed a civil suit in 1994 in Surat seeking a declaration and injunction over a plot of land, but the suit was dismissed for default in 2008 when it was not taken up. She promptly applied under Order IX, Rule 9 CPC to restore the suit, but that application itself was dismissed by the trial court in 2011 on the view that she and her advocate were "continuously remaining absent" and not interested in pursuing the case. Both the trial court's dismissal and her subsequent revision before the Gujarat High Court went against her, bringing her to the Supreme Court.

Decision Breakdown

The Supreme Court examined the trial court's own "Rojkam" order-sheet (the record of each hearing date) and found that the appellant had in fact been present at almost every one of nearly twenty hearing dates between 2009 and 2011, and that her restoration application had been filed well within the limitation period. It held that both the trial court and the High Court were wrong to conclude she was disinterested in pursuing the case, since the record showed the opposite: the matter had simply not been taken up because of the court's own business constraints, and she was absent on only the one date on which the application was ultimately dismissed. The Court set aside the High Court's order, restored the original 1994 suit, and directed the trial court to give both parties a fair opportunity and expedite the trial.

Lesson Learnt

Before concluding that a litigant has abandoned their case, courts must actually check the hearing record: a single absence on the date of dismissal does not establish "disinterest" if the litigant's attendance history shows consistent diligence in pursuing the matter.

Official source (sci.gov.in)View Judgment (PDF)

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