Case Note & Summary
The appellant, Deepak Shah, a civil contractor, filed a suit (Civil Suit No. 40/12) against M/s. Shah Builders (Respondent No. 1) and Union of India (Respondents 2-4) for recovery of Rs. 60,00,000 due under an agreement dated 06.07.1999 and for an injunction restraining Respondent No. 1 from taking proceeds of an arbitration award. The suit was dismissed for non-prosecution on 26.09.2014 when the appellant's advocate sought time for instructions, but the court closed evidence noting six prior adjournments. The appellant filed an application to set aside the closure order, citing his advanced age, ill health, and need to care for his daughter in Mumbai. The learned Additional District Judge I, Fast Track Court-I, Margao dismissed the application on 29.11.2014. The appellant appealed to the Bombay High Court at Goa. The High Court considered whether the dismissal and refusal to restore were justified. The appellant argued that the default was not wilful and that he had sufficient cause. The respondents opposed, contending that the appellant had ample opportunities. The court held that dismissal for non-prosecution is not a bar to restoration under Order 9 Rule 9 CPC if the default is not wilful. It found that the appellant's reasons—advanced age, health issues, and family responsibilities—constituted sufficient cause. The court emphasized that a liberal approach should be adopted to decide cases on merits. It set aside the impugned orders, allowed the appeal, and directed the trial court to restore the suit and permit the appellant to lead evidence, with costs of Rs. 5,000 payable to Respondent No. 1.
Headnote
A) Civil Procedure - Dismissal for Non-Prosecution - Restoration of Suit - Order 9 Rule 9, Code of Civil Procedure, 1908 - The suit was dismissed for default when the appellant failed to appear on a date fixed for evidence. The court held that dismissal for non-prosecution does not bar restoration if the default was not wilful. The appellant's advanced age and health issues constituted sufficient cause for non-appearance. The court set aside the dismissal and allowed the appellant to lead evidence, emphasizing that a liberal approach should be adopted to decide cases on merits rather than on technicalities (Paras 6-10).
Issue of Consideration
Whether the dismissal of a suit for non-prosecution and the refusal to set aside the closure of evidence were justified, and whether the appellant should be permitted to lead further evidence.
Final Decision
The appeal is allowed. The impugned order and decree dated 29.11.2014 and the order dated 26.09.2014 are set aside. The suit is restored to file. The appellant is permitted to lead evidence subject to payment of costs of Rs. 5,000 to Respondent No. 1 within two weeks. The trial court is directed to dispose of the suit expeditiously.
Law Points
- Dismissal for non-prosecution
- Restoration of suit
- Order 9 Rule 9 CPC
- Wilful default
- Liberal approach
- Right to be heard
