Delhi High Court
Canara Bank vs Prem Bhusan Dewan And Anr. on 30 April, 1992
Equivalent citations: 1992(23)DRJ245, 1992RLR295
JUDGMENT P.N. Nag, J.
(1) This revision petition is directed against the order dated 19th March, 1990 passed by Shri R.K. Jain, Sub-Judge First Class, Delhi whereby he has rejected the plaintiff-petitioner's application filed under Order 9 Rule 4 of the Code of Civil Procedure seeking restoration of the suit which was dismissed in default on 14.12.1988.
(2) On perusal of the trial court record I find that the application for restoration of the suit was filed on 5th April, 1989 and the ground mentioned in the application was that on 18.8.1988 when the matter came up before the trial court, the lawyers were on strike. The next day, when the counsel for the plaintiff enquired about the next date of hearing in the matter, the reader of the trial court informed him that the matter was adjourned to 6th March, 1989. On 6th March, 1989 when the counsel for the plaintiff attended the court, he found that the matter was not listed. Consequently he made enquiries from the Ahmad and found that in fact the matter was adjourned to 14.12.1988 (wrongly mentioned as 24.12.1988 in the application for restoration) and since on 14.12.1988 nobody appeared for the plaintiff, the suit was dismissed in default.
(3) The application for restoration is dated 4th April, 1989 arid is supported by an affidavit of counsel for the plaintiff. It was filed in Court on 5th April, 1989. No separate application for condensation of delay in filing the restoration application late was filed.
(4) From the averments made in the application for restoration it is clear that appearance was not put in by counsel for the plaintiff on 14.12.1988 when the suit was dismissed in default because though on 18.8.1988 when the lawyers were on strike the matter was in fact adjourned to 14.12.1988 but inadvertently counsel for the plaintiff noted the next date as 6.3.1989 and on 6th March, 1989 he attended the court but not finding the matter listed made enquiries and found that the matter was dismissed on 14.12.1988.
(5) In these circumstances, I am of the opinion that the absence of counsel for the plaintiff on 14.12.1988 was unintentional and bonafide and, therefore, the learned trial court ought to have restored the suit Cm 2481/90 for condensation of delay in filing the revision petition is allowed.
(6) The delay, if any, in filing the application for restoration of the suit before the trial court is also condoned.
(7) The impugned order is, therefore, set aside and the trial court is directed to restore the suit to its original number and to dispose of the same in accordance with the law.
(8) It may be noted that no reply to the restoration application has been filed by the respondents before the trial court. Cr stands disposed of.