JUDGMENT Sanjay Kishan Kaul, J.
1. This is an application filed by the plaintiff under Section 151 of The Code of Civil Procedure, 1908 (hereinafter to be referred to as, 'the Code') seeking recall of the Order dated 01.12.2005 dismissing the suit. Learned counsel for the plaintiff states that the present application may be treated as an application under Order XI Rule 4 of the Code.
2. In pursuance to the summons issued in the suit, the defendants entered appearance through counsel and on 17.01.2002 time was granted to file the written statement. The written statement was, however, not filed and, thus, the right to file the written statement was closed on 04.12.2002. The plaintiff was permitted to lead ex parte evidence. The affidavit of evidence was, however, not filed. The defendants have thereafter been appearing on some occasions, but have remained unrepresented on a number of other occasions. The failure of the plaintiff to file affidavit of ex parte evidence resulted in the matter being listed before the Court and even costs was imposed on a number of occasions. As a last opportunity, time was granted on 08.08.2005 to file the affidavit within 4 weeks, failing which the Court would have no option but to dismiss the suit for non-prosecution. The affidavit was again not found on record on 04.10.2005 and further time was granted subject to payment of Rs. 5,000/- as costs. The matter was listed on 01.12.2005 on which date it was recorded that neither the affidavit was on record, nor was anything placed on record to show that the costs have been paid. The affidavit of evidence and the documents were returned under objection in view of the fact that the costs had not been paid. The suit was dismissed for non-prosecution.
3. In the application, it is stated that the costs, in fact, had been paid though there was some delay on account of the fact that the pay order was prepared in the wrong name. Copies of the pay orders have been annexed.
4. It was put to learned counsel for the plaintiff as to whether the suit can be restored without notice to the defendants. Learned counsel for the plaintiff has relied upon the judgment of learned Single Judge of the Allahabad High Court in Babu v. L. Dewan Singh and Ors., A.I.R. 1952 Allahabad 749. The facts were almost similar where the defendants were ex parte, but thereafter when the suit was listed, none appeared for the plaintiff. The suit was dismissed in the absence of the parties. The suit was restored thereafter at request of the plaintiff but without notice to the defendants. The defendants were again proceeded ex parte and a decree was subsequently passed. The defendants thereafter filed an application to set aside the ex parte proceedings and one of the objections raised was that the suit had been restored without notice to the defendants. Learned Single Judge held that the suit was dismissed under Order IX Rule 3 of the Code and was restored under Order IX Rule 4 of the Code. The said Rule does not lay down that before a suit is restored, a notice must be given to the defendants. It was held that the defendant is entitled to the notice only if the suit is dismissed in default under Rule 8 of Order IX of the Code in the absence of the defendant. It was further held that the provisions of Rule 14 of Order IX of the Code are of no application at all because that deals with a notice to the plaintiff on an application for setting aside of an ex parte decree.
5. I am in agreement with the aforesaid legal position in view of the fact that the defendants have not been appearing since 21.09.2004 though they were not proceeded ex parte and the suit was dismissed on 01.12.2005 in the absence of the defendants, it would not be necessary to serve the defendants on the application.
6. The facts set out in the application show that there was delay in the deposit of costs due to the pay order being prepared in the wrong name. This fact ought to have been brought to the notice of the Court on 01.12.2005. Further if such a delay had occurred, the plaintiff ought to have taken steps to ensure that the delay was condoned and the affidavit of evidence was placed on record.
7. In view of the aforesaid, the application is allowed subject to payment of a further costs of Rs. 5,000/- to the Delhi Legal Aid Services Authority. The costs to be deposited within 3 weeks.
IA No. 10524/2005
8. The application for condensation of delay in payment of the costs imposed earlier is allowed.
CS (OS) No. 1958/2001
1. The plaintiff to take steps to get the affidavit of evidence placed on record.
2. List before the Joint Registrar for exhibiting of documents on 31.01.2006.
3. List before the Court for further proceedings and disposal on 28.02.2006.
4. The plaintiff to keep ready a short synopsis running into not more than 3 pages with reference to the exhibited documents.
5. Let a court notice be issued to counsel for the defendants, returnable on the next date of hearing.