Can a dismissed suit be restored under Section 151 CPC?

Where the Code provides a specific remedy, that provision should ordinarily be used. For a suit dismissed for plaintiff's default in the circumstances covered by Order IX Rule 8, restoration is ordinarily sought under Order IX Rule 9 CPC on showing sufficient cause.

When is Section 151 CPC relevant to restoration or recall?

Section 151 preserves the civil court's inherent power to make orders necessary for the ends of justice or to prevent abuse of process. It may be invoked for restoration or recall where the CPC does not provide an adequate specific procedure, subject to the settled limitation that inherent powers cannot override an express provision.

Affidavit for Restoration Application under Section 151 CPC

Important: The correct provision depends on what was dismissed and how it was dismissed. A suit dismissed for the plaintiff's default in circumstances governed by Order IX Rule 8 is ordinarily restored through Order IX Rule 9 CPC. Section 151 CPC preserves inherent powers and may be relevant where no specific CPC provision adequately governs the restoration or recall sought.

This page provides a general specimen affidavit to support an application seeking restoration or recall of a civil proceeding or application. The facts, cause for non-appearance, limitation position, court nomenclature and governing procedural provision should be adapted to the actual case.

Sample Affidavit for Restoration / Recall Application

Replace all blank fields and modify the grounds so that the affidavit states only facts that the deponent can truthfully affirm.

BEFORE THE COURT OF __________________________ AT __________________
MISCELLANEOUS APPLICATION NO. ______ OF 20____
IN
CIVIL SUIT / APPEAL / PETITION / APPLICATION NO. ______ OF 20____

IN THE MATTER OF:

____________________________ APPLICANT

VERSUS

____________________________ RESPONDENT

AFFIDAVIT

I, ________________________, son/daughter/wife of ________________________, aged about ____ years, resident of ____________________________________________, do hereby solemnly affirm and state as follows:

1. That I am the applicant in the accompanying application and am well acquainted with the facts and circumstances of the case. I am therefore competent to swear this affidavit.

2. That the above proceeding/application was dismissed by order dated ____________ for non-appearance / non-prosecution / default / other reason, as applicable.

3. That on the date when the matter was taken up, I could not effectively appear/prosecute the matter because ________________________________________________________________________________.

4. That the absence/default was neither deliberate nor intentional. The circumstances stated above were bona fide and beyond my reasonable control, and there was no intention to delay the proceeding or disregard the process of the Court.

5. That immediately after learning of the dismissal / after the impediment ceased, I took steps to seek legal advice and file the accompanying restoration/recall application without avoidable delay.

6. That refusal to restore the matter would cause serious prejudice to me, whereas restoration would enable the dispute to be decided on its merits, subject to such terms as this Hon'ble Court may consider just.

7. That the accompanying application has been filed under the provision applicable to the facts of the case, including Section 151 of the Code of Civil Procedure, 1908 where the inherent jurisdiction of this Hon'ble Court is properly invocable.

8. That the contents of the accompanying restoration/recall application may be read as part of this affidavit and are not repeated here for the sake of brevity.

DEPONENT

VERIFICATION

Verified at ________________ on this ____ day of ________________, 20____, that the contents of paragraphs 1 to ____ of this affidavit are true and correct to my knowledge and/or based on records believed by me to be true, and that nothing material has been concealed therefrom.

DEPONENT

Attestation/notarisation/oath requirements should be completed in accordance with the applicable court rules and local practice.

Section 151 CPC: Saving of Inherent Powers of the Court

Section 151 of the Code of Civil Procedure, 1908 preserves the inherent power of a civil court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

Practical effect: Section 151 is not a substitute for a specific procedure expressly provided by the CPC. Where no specific provision adequately covers the situation, the court's inherent jurisdiction may be invoked, subject to settled judicial limits.

Official Code of Civil Procedure, 1908 - Legislative Department, Government of India

Order IX Rule 9 CPC: Restoration of a Suit Dismissed for Default

Where a suit has been dismissed under Order IX Rule 8 because the defendant appeared and the plaintiff did not appear when the suit was called for hearing, the CPC provides a specific restoration mechanism under Order IX Rule 9. The plaintiff may apply to set aside the dismissal and, on satisfying the court that there was sufficient cause for non-appearance, the court may restore the suit on appropriate terms.

Accordingly, the caption and prayer should not mechanically cite Section 151 for every dismissal. The procedural provision should match the nature of the dismissal order.

Practical Filing Notes

Attach a copy of the dismissal order and identify the exact date and reason for dismissal.
State the cause of non-appearance or non-prosecution with specific, verifiable facts rather than a generic explanation.
Check the limitation period and, if necessary, file an appropriate application for condonation of delay.
Use the specific CPC provision applicable to the dismissal; rely on Section 151 only where its inherent jurisdiction is properly attracted.
Follow the concerned court's rules on affidavit form, attestation, court fee, filing index, supporting documents and service.

Frequently Asked Questions

Can every dismissed civil case be restored under Section 151 CPC?

No. If the CPC contains a specific remedy for the particular kind of dismissal, that provision should ordinarily be used. Section 151 cannot normally be employed to bypass or override an express procedural rule.

What should the affidavit explain?

It should truthfully explain the dismissal, the reason for the default or absence, the steps taken thereafter, absence of deliberate delay, and the prejudice likely to result if restoration is refused.

Is this affidavit ready to file without changes?

No. It is a specimen. Court name, case number, parties, procedural provision, factual grounds, verification, limitation facts and local filing requirements must be tailored to the actual matter.

Legal information notice: This specimen is for general information and drafting assistance. Procedural requirements can vary by court, State amendments and the facts of the case. Review the dismissal order and applicable court rules before filing.