[Cites 3, Cited by 0]
Delhi High Court
Naresh Sukhdev Sindhe vs Seema Baweja & Anr on 5 December, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 03.12.2025
Judgment pronounced on:05.12.2025
+ FAO 498/2017
NARESH SUKHDEV SINDHE .....Appellant
Through: Mr. Karan Luthra, Mr. Yogesh
Malik, Advocates.
versus
SEEMA BAWEJA & ANR .....Respondents
Through: Mr. S A Khan, Adv.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. The present Appeal under Order XLII Rule 1 read with
Section 104 of the Civil Procedure Code, 1908, (the CPC) assails
the correctness of the orders dated 19.10.2016 and 28.08.2017 in
Civil Suit No. 609215/2016 on the file of the learned ADJ, West
Delhi, Tis Hazari Courts.. The trial court, vide order dated
19.10.2016,dismissed the plaintiff/appellant's suit for declaration
and injunction for default. Thereafter, the application for
restoration under Order IX Rule 9 CPC, along with application for
condonation of delay was also dismissed by the trial courtvide
order dated 28.08.2017.
2. In this appeal, the parties herein shall be referred to in the
same rank as they are arrayed in the original suit.
3. Brief facts necessary for the adjudication of this appeal are
as follows:- The suit was posted for arguments on the issue of
maintainability on 19.10.2016. On the said date, neither the
plaintiff nor his counsel was present in the court, even though the
case was called multiple times. Hence, the trial court proceeded to
dismiss the suit for non-prosecution. Subsequently, the plaintiff
filed an application for restoration under Order IX Rule 9 CPC,
along with an application for condonation of delay, explaining that
on the said day he was required to appear in a proceedings under
Section 138 of the Negotiable Instruments Act, 1881 (the NI Act),
which was filed by defendant no. 1 against him, which prevented
his presence before the trial court. The trial court vide the
impugned order dated 28.08.2017, dismissed both the applications
holding that the plaintiff was negligent and that the delay has not
been satisfactorily explained.
4. Aggrieved, the plaintiff has approached this court,
challenging the impugned orders dated 19.10.2016 and
28.08.2017.
5. The learned counsel for the plaintiff/appellant contends
that defendant no.1 has instituted the criminal proceedings under
section 138 of the NI Act, registered as CC. No. 2732/1, P.S. Hari
Nagar, pending before the learned Metropolitan Magistrate, and
that both the said NI Act proceedings and the present Civil Suit
were coincidentally listed on the same date, i.e., on 19.10.2016.
The learned counsel urged that the owing to the penal
consequences associated with the non-appearance in the NI Act
proceedings, the plaintiff and the counsel for the plaintiff was
constrained to remain present before the Magistrate Court.
5.1. The learned counsel would also contend that the
plaintiff, apprehending the difficulty in attending the civil court on
the said date, hadmoved an application on 06.09.2016 before the
trial court seeking an exemption from personal appearance. The
learned counsel submits that this act of the plaintiff shows the
bona fide conduct of the plaintiff and negates any suggestion of
negligence.
5.2. The learned counsel for the plaintiff/appellant would
further submit that the non-appearance of the plaintiff was neither
wilful nor deliberate, but the result of two simultaneously listed
proceedings coupled with the earlier counsel's lapse, and that the
plaintiff had otherwise been regularly attending the suit
proceedings , having appeared on the earlier dates, i.e., 16.07.206,
06.08.2016. and 26.08.2016. The learned counsel submits that in
these circumstances, the dismissal of the suit for default and the
subsequent rejection of the restoration application warrant
interference, particularly as no prejudice would be caused to the
respondents if the matter is restored.
6. Per contra, the learned counsel for the
defendant/respondent supports the impugned orders and would
submit that the plaintiff cannot take shelter behind the alleged
lapse of his counsel, as both the party and the counsel are expected
to remain vigilant.The learned counsel would further argue that the
plaintiff/appellanthas not demonstrated any sufficient cause for his
non-appearance on 19.10.2016. It was submittedthat even if the
plaintiff/appellant had to be present before the Metropolitan
Magistrate Court in the NI Act proceedings, there was ample time
thereafter to appear before the civil court, particularly when both
courts are situated within the same complex. The plaintiff's
complete absence throughout the day, according to the
respondents, reflects negligence rather than bona fide difficulty.
7. Heard both sides and perused the records.
8. The principal issue that falls for determination is whether
the plaintiff has shown "sufficient cause" for his non-appearance
on 19.10.2016 so as to warrant restoration of the suit under Order
IX Rule 9 CPC, and whether the delay in filing the restoration
application deserves to be condoned.
9. It appears undisputed that on 19.10.2016, the plaintiff was
present in the complex of Tis Hazari Courts in connection with the
NI Act proceedings instituted by defendant no. 1. It is also evident
from the record that the NI Act proceedings and the present civil
suit were in fact listed on the same date. Perusal of the order dated
19.10.2016 passed in CC No. 2732/1, placed on record, shows that
the plaintiff/appellant was present before the Metropolitan
Magistrate Court in the forenoon, and the matter was adjourned to
04.01.2017 as the record corroborates the plaintiff's assertion that
he was engaged before the Magistrate Court on the said relevant
date.
10. The trial court, while dismissing the suit, noted that
neither the plaintiff, nor his counsel appeared despite repeated
calls. However, the materials on record clearly indicate that the
plaintiff/appellant had, well in advance, moved an exemption
application dated 06.09.2016, appraising the court of the difficulty
arising from the simultaneous listing of two matters, which
demonstrates the bona fide conduct of the plaintiff.
11. Turning to the aspect of delay, according to the
plaintiff/appellant, he was unable to reach and connect with his
earlier counsel to know about the status of the proceedings and the
suit having been dismissed on 19.100.2016. Upon learning from
the counsel for the defendant about the dismissal of the suit, he
applied for certified copies on 25.10.2016 and received the same
on 05.11.2016.Thereafter he approached the Legal Aid Cell for
representation. The restoration application was filed through the
legal aid counsel.
12. The suit was dismissed on 19.11.2016. The application
for restoration is seen to be filed on 19.12.2016, i.e., beyond the
prescribed limitation period of 30 days. In these circumstances, the
delay cannot be termed inordinate or unexplained.
13.In the aforesaid circumstances, this Court is of the view
that the plaintiff has demonstrated sufficient cause for non-
appearance on 19.10.2016 and has satisfactorily explained the
delay in filing the restoration application.
14. Accordingly, the appeal is allowed and the impugned
orders dated 19.10.2016 and 28.08.2017 are set aside and CS No.
609215/2016 is restored to its original number to be proceeded in
accordance with law.
15. It is clarified that nothing contained in this order shall
affect the merits of the case.
16. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
DECEMBER 05, 2025/RN
