Case Note & Summary
The present appeal arises from an order dated 20/12/2023 passed by the City Civil Court, Dadri, dismissing the appellants' (original plaintiffs') suit for default. The appellants, Satish Murlidhar Inamdar and Swapna Satish Inamdar, had filed a suit for specific performance of contract against the respondents. The suit was of the year 2017. On 20/12/2023, the suit was called out for hearing, but the appellants and their advocate were absent. The trial court dismissed the suit for default under Order XVII Rule 2 read with Order IX Rule 8 CPC. The appellants filed an application for restoration under Order IX Rule 9 CPC, which was also dismissed by the trial court. The appellants then filed the present appeal. The appellants contended that their advocate had mistakenly noted the next date as 21/12/2023 instead of 20/12/2023, and therefore they were absent. The court considered the explanation and held that the mistake of the advocate constitutes sufficient cause for non-appearance. The court noted that the suit was of 2017 and the plaintiffs had been diligent. The court allowed the appeal, set aside the dismissal order, and restored the suit to its original file subject to payment of costs of Rs. 25,000 to the respondents. The court directed the trial court to expedite the hearing and dispose of the suit within one year.
Headnote
A) Civil Procedure - Restoration of Suit Dismissed for Default - Sufficient Cause - Order IX Rule 9, Code of Civil Procedure, 1908 - The appellants/plaintiffs failed to appear on 20/12/2023 because their advocate mistakenly noted the next date as 21/12/2023 instead of 20/12/2023. The court held that such a mistake constitutes sufficient cause for non-appearance, especially when the suit was of 2017 and the plaintiffs were diligent. The dismissal was set aside subject to costs of Rs. 25,000. (Paras 1-10) B) Civil Procedure - Dismissal for Default - Advocate's Mistake - Order IX Rule 9, Code of Civil Procedure, 1908 - The court observed that the trial court ought to have considered the explanation of the plaintiffs that their advocate noted the wrong date. The mistake of the advocate should not prejudice the litigant. The appeal was allowed. (Paras 5-10)
Issue of Consideration
Whether the dismissal of the suit for default on 20/12/2023 was justified and whether the appellants (original plaintiffs) showed sufficient cause for their non-appearance on that date.
Final Decision
Appeal allowed. The order dated 20/12/2023 dismissing the suit for default and the order dismissing the restoration application are set aside. The suit is restored to its original file subject to payment of costs of Rs. 25,000 to the respondents. The trial court is directed to expedite the hearing and dispose of the suit within one year.
Law Points
- Sufficient cause for non-appearance
- Liberal construction of procedural law
- Restoration of suit dismissed for default
- Order IX Rule 9 CPC
- Order XVII Rule 2 CPC
