Case Note & Summary
The appellant-plaintiff filed Civil Suit No. 217 of 1994 for declaration and injunction regarding a plot of land. The suit was dismissed for default on 6 November 2008. The plaintiff immediately filed an application under Order IX, Rule 9 CPC for restoration on 4 December 2008, within the limitation period. The Trial Court dismissed the restoration application on 21 July 2011, observing that the plaintiff and his advocate were continuously absent and not interested. The High Court of Gujarat affirmed this order in Special Civil Application No. 16821 of 2011. The Supreme Court, upon perusal of the Rojkam-order sheet, found that the plaintiff was present on numerous dates (e.g., 02.02.2009, 20.04.2009, etc.) and the application could not proceed due to court business. The Court held that both lower courts erred in concluding lack of interest. The appeal was allowed, the impugned order set aside, and the suit restored to the file of the Additional Senior Civil Judge, Surat, with directions for expeditious trial and cooperation from both parties.
Headnote
A) Civil Procedure - Restoration of Suit - Order IX, Rule 9, Code of Civil Procedure, 1908 - Dismissal for Default - The appellant-plaintiff filed a restoration application within limitation and was present at almost all hearings, but the application could not be taken up due to court business. The Trial Court dismissed the application observing continuous absence, which was affirmed by the High Court. The Supreme Court held that the courts below erred in concluding lack of interest, as the Rojkam-order sheet showed the plaintiff's diligence. The suit was restored with directions for expeditious trial. (Paras 3-10)
Issue of Consideration
Whether the Trial Court and High Court erred in dismissing the application for restoration of the suit under Order IX, Rule 9 CPC on the ground that the plaintiff was not interested in pursuing the matter, despite the plaintiff's presence at most hearings as per the Rojkam-order sheet.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned order of the High Court, and restored Civil Suit No. 217 of 1994 to the file of the Additional Senior Civil Judge, Surat. The Trial Court was directed to accord sufficient opportunity to both parties, expedite the trial, and both parties to cooperate for early disposal. No costs.
Law Points
- Order IX Rule 9 CPC
- Restoration of suit dismissed for default
- Diligence in prosecution
- Opportunity of hearing
Case Details
Civil Appeal No. 230 of 2019 (Arising out of SLP (C) No. 12794 of 2014)
R. Banumathi, Indira Banerjee
Shamik Sanjanwala (for appellant), Saroj Haresh Raichura (for respondent No. 1)
Kusumben Indersinh Dhupia
Sudhaben Biharilalji Bhaitya & Anr.
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Nature of Litigation
Civil suit for declaration and injunction regarding property, dismissed for default, and subsequent restoration application.
Remedy Sought
Appellant-plaintiff sought restoration of the suit dismissed for default.
Filing Reason
Suit was dismissed for default on 6 November 2008; plaintiff filed restoration application under Order IX, Rule 9 CPC.
Previous Decisions
Trial Court dismissed restoration application on 21 July 2011; High Court affirmed in Special Civil Application No. 16821 of 2011 on 28 January 2014.
Issues
Whether the Trial Court and High Court erred in dismissing the restoration application under Order IX, Rule 9 CPC on the ground of lack of interest by the plaintiff.
Submissions/Arguments
Appellant argued that the plaintiff was present at almost all hearings as per Rojkam-order sheet, but the application could not be taken up due to court business; only on the date of dismissal was the plaintiff absent.
Respondent No. 1 was represented but no specific arguments recorded.
Ratio Decidendi
A restoration application under Order IX, Rule 9 CPC should not be dismissed on the ground of lack of interest when the plaintiff has demonstrated diligence by being present at most hearings, and the delay in hearing was due to court business. The courts below erred in concluding that the plaintiff was not interested.
Judgment Excerpts
Having regard to the Rojkam-order sheet of the Trial Court, we are of the view that both the Trial Court as well as the High Court were not right in observing that the appellant-plaintiff was not interested in pursuing the restoration application.
The appellant-plaintiff having filed the suit for declaration and injunction in our considered view ought to be given an opportunity to pursue his suit.
Procedural History
Civil Suit No. 217 of 1994 filed by appellant-plaintiff for declaration and injunction. Issues framed on 3 October 2008. Suit dismissed for default on 6 November 2008. Restoration application under Order IX, Rule 9 CPC filed on 4 December 2008. Trial Court dismissed restoration application on 21 July 2011. Revision petition (Special Civil Application No. 16821 of 2011) dismissed by High Court on 28 January 2014. Appeal to Supreme Court by special leave.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX, Rule 9
