Delhi District Court
) By This Order I Shall Disposed Off An ... vs . on 13 March, 2012
IN THE COURT OF MS. KADAMBARI, CIVIL JUDGE-III (NORTH),
ROOM NO.231, TIS HAZARI COURTS, DELHI.
CS No. 677/10
INDUSTRIAL GENERAL AGENCIES
Vs.
M/S GASTEK ENGINEERING (P) LTD.
13.03.2012
ORDER
1) By this order I shall disposed off an application U/Or. 9 Rule 9 CPC for restoration of the suit. The applicant submits before the Court that the suit was listed for hearing on 14.07.2011 and the suit was being attended by the Manager of the plaintiff Sh. Kamal Vaid, but since he could not attend the proceeding after the suit was transferred to the present Court having been suffering with Jaundice. The suit was dismissed in default on 14.07.2011 as the Counsel of the plaintiff was also busy in another matter so he could not attend the proceeding on that day. On making inquiries the AR of the plaintiff came to know that the suit is dismissed in default on 14.07.2011 and therefore, the plaintiff engaged another counsel to do the needful, since the previous counsel now a days practicing at Rohini Court. Accordingly, the present application is moved for restoration of the suit to its original number. It is also prayed that the the none appearance of the AR and Counsel for the plaintiff is neither intentional nor deliberate.
2) It is also prayed that plaintiff would suffer irreparable loss and injury in case the suit is not restored to its original number. The applicant also 1 submitted that the case is at initial stage and the plaintiff has paid substantial amount of Court Fee, as such the suit is liable to be restored. It is prayed the order dt. 14.07.2011 be set-aside and the suit be restored to its original number.
3) Counsel for the non-applicant has filed his reply in respect of the application U/Or. 9 Rule 9 moved by applicant taking preliminary objection that the present application is not maintainable as the same has been filed beyond the period of limitation as prescribed by the Law. It is also stated that the plaintiff has miserably failed to show and to prove to the satisfaction of the Court that any sufficient case prevented the applicant or his authorized agent or his Counsel to appear before the Court on 14.07.2011.
4) The non-applicant further stated that in any case the lawyer representing the plaintiff or any one on behalf of the lawyer could have come to the Court and to make a request for adjournment, but no initiative was taken either by the plaintiff or by the Counsel to follow up the case. It is also stated that the suit of plaintiff is dismissed in July 2011 and it came to the notice of the Counsel for the plaintiff on 21.11.2011. It is also denied by the defendant to be absolutely wrong to suggest that previous counsel was only confined to Rohini Court. Counsel for the non-applicant /defendant submitted that Plaintiff /applicant has not shown any sufficient reason which has prevented appearing them before the Court on 14.07.2011, hence the application is liable to be dismissed.
Heard.
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5) The Court find substance in the arguments of the Ld. Counsel for the non-applicant as it is evident from the Article 122 of the Limitation Act that "To restore a suit or Appeal or application etc., the date of limitation is of 30 days from the date of dismissal"
6) However, it is pertinent to mentioned that the Counsel for applicant has not moved the present application U/Or. 9 Rule 9 with an application to condon the delay U/Sec. 5 of Limitation Act.
7) Ld. Counsel for the plaintiff sought reliance on the case of "Universal Builder and Contractor Vs. Sheela Singh Uppal and Ors." where it is held that "The power of the Court to condon the delay is not circumscribed by application being filed, Court can be satisfied even from the affidavit or documents on record".
In the facts & circumstances of the case in hand no benefit of the judicial precedent can be given to the plaintiff. The plaintiff has failed to show any cogent & justificable reasons in support their claim.
8) Plaintiff has take a plea that his manager who is used to appear in the Court was suffered from jaundice, hence due to his non appearance and the Counsel being busy, the suit of the plaintiff was dismissed by the Court on 14.07.2011. However, it is pertinent to mention that despite taking the plea of the illness, no medical record of the Manager of the applicant is on record. Moreover, nothing is on record to show that the Counsel of plaintiff was also busy in taking care of other cases on 14.07.2011 or meanwhile the case is transferred to the present court.
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9) It is clearly evident that the presnet application filed U/Or. 9 Rule 9 CPC his hit by limitation and there is no specific plea has been taken by the applicant as to why no application was moved in the period of limitation or, why the delay has been caused, and what was the 'sufficient ground' which prevented the plaintiff moving the application before the Court. The contention of the Counsel for the defendant that they had moved the application only after the knowledge of the same and the period of limitation reckoning from there has no legal sanctity. The only submission that the plaintiff /applicant has paid a considerable amount of Court Fee is no sufficient ground in the eyes of law to restore the present suit, hence the application of the applicant is dismissed for the above stated reasons.
File be consigned to Record Room.
Announced in Open Court (KADAMBARI) today i.e 13.03.2012 at 4 pm CJ-III/NORTH/DELHI/13.3.2012 4 CS No. 677/10 13.03.2012 At 4 pm. Present: None.
Vide separate order an application U/Or. 9 Rule 9 CPC moved on behalf of plaintiff is dismissed. Let the same also be consigned to Record Room.
(KADAMBARI) Civil Judge/North/Delhi 13.03.2012 5