Delhi High Court
Kamlesh vs Jitender & Ors on 30 March, 2012
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 144/2012
% Date of Decision: 30.03.2012
KAMLESH ..... Appellant
Through :Mr Rajuddin Khan, Advocate
versus
JITENDER & ORS ..... Respondent
Through :None.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J. (ORAL)
*
CM No. 5915/2012 (exemption)
Exemption as prayed for is allowed subject to just exceptions.
FAO 144/2012
1. In the present appeal, the appellant has challenged the impugned
order dated 31.01.2012 passed by the learned ADJ, Delhi, by which
application under Order 9 Rule 9 CPC of appellant for restoration of suit
as well as application under Section 5of Limitation Act are dismissed.
2. The appellant i.e. plaintiff before the learned trial court had filed a
suit under Order XXXVII of CPC for recovery of ` 5,00,000/- against
the respondents. Initially the appellant/plaintiff had taken steps to serve
the respondents, but the respondents could not be served and the matter
was adjourned to 09.05.2005 for taking further steps for serving the
respondents. It is alleged that since then the appellant/plaintiff had fallen
sick due to which she could not take steps and asked her husband to do
the needful for the said date. Ultimately, the suit was dismissed for non-
appearance on 09.05.2005. It is alleged that from May, 2005 to
15.01.2012 i.e. for a period of about 6½ years, the appellant had fallen
sick and her husband did not tell her anything about the matter as the
respondents are his brothers and on 16.01.2012 when the appellant
contacted her counsel, she had come to know that the suit was dismissed
in default on 09.05.2005. Immediately thereafter on 19.01.2012 the
appellant took steps for restoration of the suit and filed application under
Order 9 Rule 9 CPC along with application under Section 5 of Limitation
Act. The said applications were dismissed by the learned trial court on
the ground of limitation.
3. The learned counsel for the appellant has contended that the
appellant derived the knowledge of the dismissal of the suit only on
16.01.2012 when she contacted her counsel and prior to that she was
under the belief that her husband is pursuing the matter and, as such, she
did not contact the counsel. It is stated that even the medical certificates
for the aforesaid period showing her ailment were filed but the same were
not appreciated by the learned ADJ and the applications were dismissed.
4. I have perused the impugned order as well as the medical
certificates placed on record. The medical certificates are in the form of
printed slips issued by a private doctor. No specific treatment papers
have been filed by the appellant. Even the prescription of medicines has
not been filed. The medical certificates also record "Not for medico-legal
cases." The medical certificates appear to be procured one for the
purposes of restoration of suit. Even if the same are taken into
consideration, the same do not show that the appellant remained sick
throughout the period of 6½ years as is alleged. There are gaps of 4-6
months in each year for which there is nothing to show that the appellant
was sick. Further, nothing prevented her from contacting her advocate on
telephone to know the status of her case. The appellant has deliberately
not pursued the case. The appellant has made vague allegations against
her husband. It is also unbelievable that all of sudden the appellant
contacted her counsel on 16.01.2012 and came to know about the
dismissal of case. The appellant has slept over the matter for 6½ years.
No sufficient cause has been shown to explain the delay of 6½ years.
There is no infirmity or illegality in the impugned order. The learned ADJ
has rightly dismissed the application for restoration of the suit being
barred by limitation.
The appeal stands dismissed.
VEENA BIRBAL, J
MARCH 30, 2012
srb
