Case Note & Summary
The petitioners, plaintiffs in a civil suit, filed a writ petition under Article 227 of the Constitution of India challenging the judgment and order dated 07.01.2023 passed by the trial court in Miscellaneous Application No.122/2016 in Civil Suit No.40 of 2005. The trial court had dismissed the application for condonation of 228 days delay in filing an application under Order 9 Rule 9 CPC to restore the suit which was dismissed for default. The suit was for declaration, permanent injunction and other consequential reliefs concerning an agreement dated 23.03.2004. The plaintiffs claimed they paid the entire loan due from defendants 1 to 5 to defendant 6 and invested Rs.850 lakhs for development of a resort. The suit was dismissed for default on 22.06.2016. The plaintiffs filed an application for restoration on 08.02.2017, along with an application for condonation of delay of 228 days. The trial court rejected the condonation application, finding that the explanation for delay was not satisfactory. The plaintiffs contended that they were pursuing a related proceeding before the National Company Law Tribunal (NCLT) and were under the bona fide belief that the suit was not dismissed. The High Court held that the trial court's findings were based on appreciation of evidence and were not perverse. The court noted that the plaintiffs did not produce any evidence to show that they were pursuing the NCLT proceedings or that they had no knowledge of the dismissal. The petition was dismissed.
Headnote
A) Civil Procedure - Condonation of Delay - Order 9 Rule 9 CPC - Section 5 Limitation Act - The petitioners sought condonation of 228 days delay in filing an application to restore a suit dismissed for default. The trial court rejected the application finding no sufficient cause. The High Court upheld the rejection, holding that the explanation for delay was vague and not supported by evidence. (Paras 1-10) B) Constitutional Law - Supervisory Jurisdiction - Article 227 Constitution of India - The High Court declined to interfere with the trial court's discretionary order, noting that the findings were based on appreciation of evidence and not perverse. (Paras 11-12)
Issue of Consideration
Whether the trial court erred in dismissing the application for condonation of 228 days delay in filing an application under Order 9 Rule 9 CPC.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order rejecting the condonation application.
Law Points
- Order 9 Rule 9 CPC
- Section 5 Limitation Act
- Condonation of Delay
- Sufficient Cause
- Article 227 Constitution of India
