Delhi High Court
Smt. Mumtaz Thakur & Ors. vs Smt. Swarna Thakur & Ors. on 3 December, 2008
Author: Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 148 OF 2007
Date of Decision : December 03, 2008
Smt. Mumtaz Thakur & Ors. .......Appellants
Through : Mr. Sachin Midha,
Advocate
Versus
Smt. Swarna Thakur & Ors. .......Respondent.
Through : Mr. V. B. Andley, Sr. Advocate
with Mr. Rajinder Mathur and
Ms. Anu Narayan, Advocates
CORAM :
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
SUDERSHAN KUMAR MISRA, J. : (Oral)
1. On 25th February, 2004, learned Additional District
Judge dismissed the suit of the appellant for non-prosecution.
On 4th April, 2007, plaintiff's application under Order 9 Rule 9
CPC seeking restoration of the suit was also dismissed.
Dissatisfied, the plaintiff/appellant has instituted the instant
appeal.
2. It is the appellants' case that the suit was initially
filed by them on 11.9.1998 before this Court, and later on, the
case was transferred to the learned Addl. District Judge at Tis
Hazari Courts due to the change in the pecuniary jurisdiction of
the court. Admittedly, the matter was listed on 6.11.2003 before
FAO No.148/2007 Page 1 of 6
the learned Addl. District Judge, when it came to be adjourned to
9.12.2003. It is the appellants' case that on 9.12.2003, the
Presiding Officer was on leave and the matter was adjourned to
14.1.2004, but proxy counsel for the appellants had noted the
date as 25.3.2004 instead. It is further contended by the
appellants that it is only on 25.3.2004 that they discovered that
the suit had been taken up on 14.1.2004 and ultimately
dismissed for non-prosecution on 25.2.2004.
3. Perusal of the Trial Court record shows that on
9.12.2003, the Presiding Officer was on leave and the matter
was adjourned to 14.1.2004 for admission/denial of documents
and framing of issues. On 14.1.2004, issues were framed in the
appellants' absence and the matter was adjourned to 25.2.2004,
for the plaintiffs' evidence. On 25.2.2004, there was no
appearance on behalf of the plaintiff. Learned Addl. District
Judge recorded that he had, "called the matter many times since
morning but none has appeared on behalf of the plaintiff. It
seems that the plaintiff is not interested in prosecuting the
case." Consequently, the suit was therefore, dismissed in default
of appearance and for want of prosecution.
4. In the impugned order declining restoration, the
learned Addl. District Judge has noted that as per the case of the
plaintiffs/appellants, on 9.12.2003, learned proxy counsel for the
plaintiff noted the next date of hearing as 25.3.2004. However,
there is nothing on record to show that on 9.12.2003 learned
FAO No.148/2007 Page 2 of 6
proxy counsel for the plaintiffs had in fact appeared. It was also
noted that it is not the case of the plaintiffs/appellants that
learned proxy counsel for the plaintiffs/appellants appeared after
adjournment of the case on 9.12.2003. On this, learned Addl.
District Judge concluded that the contents of the application are
not supported by the record and that, therefore, no sufficient
cause has been shown for non-appearance of the plaintiffs/
appellants on 25.2.2004.
5. Admittedly, the suit property is a valuable property.
The appellants claim to have purchased the suit property in
December 1998 and undisputedly, till at least 6.11.2003, the
matter was pursued with reasonable diligence by them both
before the High Court and again before the learned Addl.
District Judge. Pleadings were also completed. It is only on
9.12.2003, when the Presiding Officer happened to be on leave,
that the matter seems to have been derailed as far as the
appellants/plaintiffs are concerned. It is obvious that since the
Presiding Officer was on leave, and nothing substantial was
likely to happen on that date, plaintiffs' counsel may have
requested another advocate to go and enquire about the date
which had been fixed by the reader. It is no doubt true that no
copy of the case diary of either the proxy counsel, or of the
counsel herself, has been annexed to the application for
restoration. The application has been dismissed merely on the
short ground that the appearance of the proxy counsel has not
FAO No.148/2007 Page 3 of 6
been noted by the reader while fixing the next date of hearing
and, therefore, the case put up by the plaintiffs that her proxy
counsel appeared on 9.12.2003 and noted the wrong date is not
made out. In support of their application for restoration, the
plaintiffs/ appellants had also annexed an affidavit of Sh. B. A.
Hashmi, Advocate, confirming the fact that he had appeared on
6.11.2003 on behalf of Ms. Shubhangi Tuli, Advocate and had
noted the wrong date.
6. In State of Punjab Vs. Harjit Singh, (2007) 146
PLR 474, where the Court was hearing a revision petition
against an order passed by the District Judge, whereby an
appeal filed against the order of the Trial Court dismissing an
application for restoration of the suit, was dismissed, the Court
was pleased to restore the suit since it felt that, "it would be in
the interest of justice if the suit is restored so that the parties
are able to get decision on merits." It further held that, "The
absence of the plaintiff cannot be said to be on account of any
lack of bona fide, may be the plaintiff was not vigilant enough to
prosecute the suit as may be required." In the instant case also,
keeping in view the fact that the suit has been prosecuted
diligently till that date, I do not see any reason that may have
persuaded the plaintiffs/appellants to avoid prosecuting the
matter further on 9.12.2003. No benefit is shown to have
accrued to the appellants by not appearing on that date.
FAO No.148/2007 Page 4 of 6
7. Learned counsel for the respondent has also objected
to the maintainability of this appeal. According to him, the
appellants' suit came to be dismissed by the learned Additional
District Judge in the exercise of powers under Order 17 Rule 2 of
the Code of Civil Procedure, 1908, and since no appeal is
provided for under Order 43 from an order passed under Order
17 Rule 2 CPC, therefore, the present appeal is not
maintainable. I do not agree. As mentioned in Order 17, the
Court was obliged to proceed to dispose of the matter in any of
the modes provided under Order 9, and consequently, the
application moved by the plaintiffs/appellants under Order 9
Rule 9 CPC for restoration of the suit was maintainable before
the learned Addl. District Judge. It was open to that court to
consider the application under Order 9 Rule 9 CPC and to
dispose it of in accordance with law. The instant appeal against
an order dismissing an application under Order 9 Rule 9 CPC is
in fact maintainable before this Court under Order 43 Rule 1
CPC.
8. I feel that the interests of justice would be met by
setting aside the impugned order and restoring the suit, while at
the same time, compensating the respondents/defendants with
costs and by directing expeditious disposal of the suit.
Consequently, the impugned orders passed on 25.2.2004 and
4.4.2007 are set aside, subject to payment of costs of
Rs.35,000/-. The appellants/plaintiffs are directed to file their
FAO No.148/2007 Page 5 of 6
list of witnesses as well as the affidavits of their witnesses within
four weeks and the trial be completed preferably within six
months from today.
9. The parties to appear before the court of Learned
District Judge on 10.12.2008, who may then assign the matter to
the appropriate court.
10. Trial Court record be returned forthwith. Costs to be
paid before 10.12.2008.
11. The appeal stands disposed of. All pending
applications also stand disposed of.
Sudershan Kumar Misra, J.
December 03, 2008
ap
