Case Note & Summary
The plaintiff filed a civil suit in 2011 seeking declaration, permanent injunction, and alternative relief of partition. On July 27, 2016, the suit was dismissed for default due to the plaintiff's non-appearance. The plaintiff filed an application under Order IX Rule 9 CPC to restore the suit. The Trial Court allowed the application on November 30, 2022, subject to payment of Rs.1,000 costs to the 6th defendant by December 9, 2022, failing which the application would stand dismissed. The plaintiff did not comply, and the application was dismissed. The plaintiff filed a civil revision petition under Article 227 of the Constitution. The plaintiff's counsel argued that the failure to comply was due to the advocate's negligence in not communicating the order to the plaintiff, and that there was no deliberate or willful intention to disobey. The High Court observed that the plaintiff cannot be penalized for the advocate's lapse and that the plaintiff had sufficient cause for non-compliance. The court set aside the Trial Court's order and restored the suit on condition that the plaintiff pays Rs.1,000 costs to the 6th defendant within two weeks. The civil revision petition was allowed.
Headnote
A) Civil Procedure Code - Restoration of Suit - Order IX Rule 9 - Conditional Order - The plaintiff's suit was dismissed for default. The Trial Court allowed the restoration petition subject to payment of Rs.1,000 costs by a specified date. The plaintiff failed to comply due to his advocate's failure to communicate the order. The High Court held that the plaintiff cannot be penalized for the advocate's lapse and that the plaintiff had sufficient cause for non-compliance. The conditional order was set aside and the suit was restored on payment of Rs.1,000 costs to the 6th defendant within two weeks. (Paras 4-10)
Issue of Consideration
Whether the Trial Court's conditional order allowing restoration of suit subject to payment of costs should be interfered with under Article 227 when the plaintiff failed to comply due to advocate's failure to communicate the order.
Final Decision
The civil revision petition is allowed. The order dated November 30, 2022 passed in I.A.No.216 of 2016 in O.S.No.91 of 2011 by the Subordinate Court, Attur, is set aside. The suit is restored to file on condition that the plaintiff pays Rs.1,000 costs to the 6th defendant within two weeks from the date of receipt of a copy of this order.
Law Points
- Order IX Rule 9 CPC
- Restoration of suit dismissed for default
- Conditional order
- Advocate's negligence
- Sufficient cause
- Article 227 of Constitution of India
