Delhi High Court
M/S Joyvision Electromec Through ... vs M/S First Feel International on 20 December, 2022
Neutral Citation Number 2022/DHC/005771
$~3 and 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20.12.2022
+ CM(M) 1241/2022
M/S JOYVISION ELECTROMEC THROUGH
ITS PARTNER PRAVEEN AGGARWAL ..... Petitioner
Versus
M/S FIRST FEEL INTERNATIONAL ..... Respondent
+ CM(M) 1246/2022
JOYVISION ELECTROMEC THROUGH
ITS PARTNER MR PRAVEEN AGGARWAL ..... Petitioner
Versus
SALASAR EXIM LTD AND OTHERS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Ruchir Mishra and Mr. Ramneek
Mishra, Advocates
For the Respondent : None
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
1. By way of the present petitions, Petitioner is challenging the order
dated 30.05.2022 whereby the learned Trial Court had rejected the
application seeking restoration under Order 9 Rule 4 CPC for recalling
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Digitally Signed
Signing Date:23.12.2022
12:18:09
Neutral Citation Number 2022/DHC/005771
the order dated 03.02.2020.
2. It is the submission of learned counsel for the Petitioner that the
last effective date of hearing before the learned Trial Court was
11.09.2019 when the counsel was unable to reach the Trial Court being
out of station. The Authorised Representative of the Petitioner reached
the Court premises a little late, by which time the matter was already
adjourned to the next date of hearing.
3. On 11.09.2019, learned Trial Court adjourned the matter to
03.02.2020.
4. Learned counsel submits that the Authorised Representative of
the Petitioner after collecting the information regarding the next date of
hearing, informed the learned counsel that the case was posted to
13.02.2020. Accordingly, when the learned counsel alongwith the
Authorised Representative reached the Court premises on 13.02.2020,
they learnt that the case was already listed on 03.02.2020 and had been
dismissed in default on account of their absence.
5. The application seeking restoration was filed on 02.03.2020,
within stipulated period of limitation. Learned counsel submits that the
wrong noting of date of hearing should not preclude the Petitioner from
pursuing its suit and it would be unjust if the Petitioner is non-suited on
that basis.
6. Despite service, no one appears for the Respondent. Since it is
only a restoration of the suit which has been dismissed at a preliminary
stage, no prejudice will otherwise be caused to the Respondents.
7. In the considered opinion of this Court, there is force in the
submissions made by learned counsel for the Petitioner in that, no party
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Signing Date:23.12.2022
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Neutral Citation Number 2022/DHC/005771
ought to be deprived of its rights to a remedy as ordained by law and
such issues of dismissal for default on account of a party's absence or
that of its counsel, should not come in the way of dispensing complete
justice unless the Court finds that as habitual or recurring. In the present
case, the Petitioner had, in fact, moved the learned Trial Court for recall
of the impugned order within the stipulated period of limitation.
8. More so, the Respondent can always be compensated with costs.
9. Learned Trial Court lost track of another aspect, though it was not
relevant at the stage when the suit was dismissed, that the dispute had
been lingering on for more than two years only on this account.
10. In view of the above, this Court is of the considered opinion that
it would sub-serve the interest of justice if the impugned order is
quashed and set aside and the Petitioner is provided one opportunity to
commence the proceedings at and from the stage on the day the
impugned order was passed.
11. Accordingly, the petitions are allowed. The impugned order dated
30.05.2022 passed by the learned Trial Court is quashed and set aside.
Suit is restored to its original number and the learned Trial Court is
directed to proceed in accordance with law, from that stage.
12. This would, of course, be subject to costs of Rs.10,000/- in each
of the petitions to be paid by the Petitioner to the Respondent.
13. Petitions are disposed of in above terms.
14. Parties may appear before the learned Trial Court on 10.01.2023.
TUSHAR RAO GEDELA, J
DECEMBER 20, 2022/yg
Signature Not Verified
Digitally Signed
Signing Date:23.12.2022
12:18:09
