SRINAGAR: The Jammu Kashmir and Ladakh High Court has upheld the restoration of an ejectment suit filed by an elderly man, ruling that his health problems provided sufficient grounds for his absence when the case was dismissed for non-prosecution.
Justice Rajesh Sekhri dismissed a petition filed by Sheikh Mohammad Yaseen, a senior citizen, challenging an appellate court order that allowed Ali Mohammad Shora’s suit to be restored.
In its judgment dated October 6, 2026, the High Court held that the challenge to the appellate court’s decision was without merit and directed the trial court to resume proceedings in accordance with law. The parties have been directed to appear before the trial court on October 14.
The ejectment suit was dismissed for non-prosecution by the trial court on May 20, 2022. Shora applied for its restoration on May 27, 2022, stating that his advanced age and severe joint problems had prevented him from attending court. His restoration application was rejected by the trial court on June 17, 2023, for want of sufficient cause.
Shora subsequently challenged that decision before the appellate court, which allowed his appeal on June 9, 2025, and ordered the suit to be restored.
Yaseen then approached the High Court, arguing that the dismissal of a restoration application was equivalent to a decree and could be challenged only through a regular civil first appeal, rather than a miscellaneous appeal under Order XLIII of the Code of Civil Procedure (CPC). He also contended that Shora’s repeated absence over 12 hearings justified the rejection of his restoration application.
Rejecting the procedural objection, Justice Sekhri held that an order refusing to set aside the dismissal of a suit in circumstances covered by Order IX Rule 9 of the CPC is appealable under Order XLIII Rule 1(c).
The court explained that dismissal of a suit for non-prosecution does not amount to a decree because it does not conclusively determine the substantive rights of the parties in the dispute.
The High Court also distinguished the Supreme Court’s judgment in Rajneesh Kumar v. Ved Prakash, decided on November 21, 2024, which emphasised that litigants must remain vigilant about their cases and cannot automatically blame their lawyers for negligence to excuse prolonged delays.
Justice Sekhri noted that Shora had sought restoration within seven days of the suit’s dismissal, unlike the case cited by Yaseen, which involved an unexplained delay of 534 days in filing an appeal.
The court found that Shora had established sufficient cause for his absence on May 20, 2022, in view of his age and serious joint problems.
Upholding the appellate court’s order, the High Court dismissed Yaseen’s petition, restored the ejectment suit to its original position and directed the trial court to proceed with the case in accordance with law.
