Delhi High Court
Narender Singh Bisht vs Shashi Bisht on 11 January, 2023
2023/DHC/000254
$~2
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11.01.2023
+ MAT.APP.(F.C.) 184/2022 & CM APPL. 50573/2022
NARENDER SINGH BISHT ..... Appellant
versus
SHASHI BISHT ..... Respondent
Advocates who appeared in this case:
For the Appellant: Mr Kuldeep Rana, Advocate (through VC).
For the Respondent: None.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL. 50574/2022( delay of 25 days in filing the appeal)
1. For the reasons stated in the application, the application is
allowed and the delay in filing the appeal is condoned.
MAT.APP.(F.C.) 184/2022
2. Appellant impugns order dated 02.09.2022 rejecting application
of the appellant under order IX rule 9, C.P.C seeking restoration of the
petition that had been dismissed on 04.05.2022.
Signature Not Verified
By:ARUNA KANWAR
Signing Date:13.01.2023
17:14:18
2023/DHC/000254
3. Learned counsel for the appellant submits that the counsel had
instructed his associates to appear in the matter on 04.05.2022,
however, on the way to Court, the associate met with an accident and
suffered injuries and accordingly, could not reach court on time.
4. Order dated 04.05.2022, records that notice sent to the appellant
had been returned unserved and the counsel who was earlier
representing had stated before the Court that he had returned the brief.
The Court, thereafter, waited for the appellant and dismissed the
matter for non-appearance of the appellant/petitioner.
5. We notice that the application under order IX rule 9 was filed
on 17.05.2022 i.e. within 13 days of dismissal in default, stating that
the counsel's associate had met with an accident.
6. By the impugned order the family court has taken a
hypertechnical view in rejecting the application on the ground that
medical documents of the associate has not been filed.
7. In view of the fact that the court notices sent to the appellant on
04.05.2022 had returned unserved, the family court should not have,
dismissed the petition in default. Rather the Court should have
directed issuance of fresh notice on the appellant. Be that as it may,
since the non-appearance has been duly explained i.e on account of the
accident of the associate, the rejection of the application under order
IX order 9 C.P.C was not warranted.
8. We also notice from the order sheet placed on record that the
respondent has not been served in the petition that was filed before the
Signature Not Verified
By:ARUNA KANWAR
Signing Date:13.01.2023
17:14:18
2023/DHC/000254
Family Court. Accordingly, we have taken up this appeal and are
disposing of the same ex-parte.
9. In view of the facts noticed here in above, the impugned order
dated 04.05.2022 dismissing the petition in default and the order dated
02.09.2022 rejecting the application under order IX rule 9 C.P.C are
set aside. The petition is restored on the records of the Family Court.
10. The petition shall be listed before the Family Court for
directions on 15.02.2023.
11. Order dasti under the signatures of Court Master.
SANJEEV SACHDEVA, J.
VIKAS MAHAJAN, J.
JANUARY 11, 2023
sv
Signature Not Verified
By:ARUNA KANWAR
Signing Date:13.01.2023
17:14:18
