Case Note & Summary
The original plaintiffs (appellants) filed a suit in 1989. The suit was dismissed for want of prosecution on 16th April 1993. Nearly four years later, on 31st March 1997, the plaintiffs took out a notice of motion seeking to set aside the dismissal order and restore the suit. The learned motion judge dismissed that notice of motion on 4th April 1997. The plaintiffs appealed against that dismissal. The appellants' counsel argued that there was a bona fide reason for the plaintiffs' advocate not appearing on 16.4.1993 (the advocate's father was ill) and that the delay in filing the restoration application was sufficiently explained. The court examined the affidavit of the advocate, Shri Arun Vasudeo Vaidya, and found that the explanation for the delay was not satisfactory. The court noted that the suit had been pending for over three years without any steps being taken. The appellate court held that the trial court's discretion in dismissing the restoration application was not shown to be perverse or based on no evidence, and therefore no interference was warranted. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Restoration of Suit - Sufficient Cause - Order IX Rule 9, Code of Civil Procedure, 1908 - The suit was dismissed for want of prosecution on 16.4.1993. The plaintiffs took out a notice of motion for restoration on 31.3.1997, i.e., after nearly four years. The advocate's affidavit stated that he could not appear due to his father's illness and that the plaintiffs were pursuing other remedies. The court held that the explanation for the delay was not sufficient and the trial court's discretion in dismissing the restoration application did not warrant interference. (Paras 2-5)
B) Civil Procedure - Appeal against Discretionary Order - Interference - Order XLI Rule 3, Code of Civil Procedure, 1908 - The appellate court will not interfere with a discretionary order of the trial court unless it is shown to be perverse or based on no evidence. In this case, the trial court's order dismissing the restoration application was based on a proper appreciation of facts and law, and no ground for interference was made out. (Para 5)
Issue of Consideration
Whether the learned motion judge erred in dismissing the notice of motion for restoration of the suit dismissed for want of prosecution, and whether the delay in filing the restoration application was sufficiently explained.
Final Decision
The appeal is dismissed. No order as to costs.
Law Points
- Restoration of suit dismissed for default
- sufficient cause for delay
- discretion of trial court
- Order IX Rule 9 CPC
- Order XLI Rule 3 CPC
Case Details
2005 LawText (BOM) (12) 23
Appeal No.400 of 1997 in Notice of Motion No.1044 of 1997 in Suit No.1257 of 1989
Mr. A.A. Verma i/by M/s. Rustomji & Ginwala for the appellants
V. Pankajakshi Vasudevan, Anita M.K. Vasudevan, Ajit K. Vasudevan, Sangeeta M.K. Vasudevan, Harish M.K. Vasudevan
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Nature of Litigation
Appeal against dismissal of notice of motion for restoration of suit dismissed for want of prosecution.
Remedy Sought
The appellants (original plaintiffs) sought to set aside the order dated 16.4.1993 dismissing the suit for want of prosecution and to restore the suit.
Filing Reason
The suit was dismissed for default on 16.4.1993; the plaintiffs took out a notice of motion on 31.3.1997 for restoration, which was dismissed on 4.4.1997.
Previous Decisions
The suit was dismissed for want of prosecution on 16.4.1993. The notice of motion for restoration was dismissed on 4.4.1997.
Issues
Whether the learned motion judge erred in dismissing the notice of motion for restoration of the suit dismissed for want of prosecution.
Whether the delay in filing the restoration application was sufficiently explained.
Submissions/Arguments
The appellants' counsel argued that there was a bona fide reason for the plaintiffs' advocate not appearing on 16.4.1993 due to his father's illness, and the delay in taking out the notice of motion for restoration was explained by sufficient cause.
Ratio Decidendi
The appellate court will not interfere with a discretionary order of the trial court unless it is shown to be perverse or based on no evidence. The explanation for the delay of nearly four years in seeking restoration was not sufficient, and the trial court's discretion was properly exercised.
Judgment Excerpts
The original plaintiffs are in appeal. Their suit came to be dismissed for want of prosecution on 16th April, 1993.
The learned counsel for the appellants invited our attention to the affidavit of the advocate Shri Arun Vasudeo Vaidya in support of his submission that there was bonafide reason on the part of the plaintiffs’ advocate in not appearing before the court on 16.4.1993 and that delay in taking out the notice of motion for restoration is explained by sufficient cause.
The suit was filed in the year 1989 and for more than three years no steps were taken.
Procedural History
Suit No.1257 of 1989 was filed in 1989. On 16.4.1993, the suit was dismissed for want of prosecution. On 31.3.1997, the plaintiffs took out Notice of Motion No.1044 of 1997 seeking restoration. On 4.4.1997, the learned motion judge dismissed the notice of motion. The plaintiffs filed Appeal No.400 of 1997 against that dismissal. The appeal was heard and dismissed on 2.12.2005.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX Rule 9, Order XLI Rule 3
