Allowed

Brijendra v. the Presiding Officer Court of

Rajasthan HC10 Sept 2008CW/5762/2005

Case brief

AI extract

What is this about?

Allowed a writ petition to set aside lower appellate orders. The High Court restored a suit dismissed for default under Order 9 Rule 9 CPC, holding the petitioner's absence was due to a bonafide mistake regarding the hearing date relative to a second suit.

What did the court decide?

Impugned orders of trial court and lower appellate court set aside; suit restored; parties directed to appear before trial court.

Brijendra Vs the Presiding Officer Court of — Property and Title | Rajasthan HC (2008)

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IN THEHIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR.

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ORDER

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S.B. CIVIL WRIT PETITION NO.5762/2005 Brijendra VS. Presiding Officer & Ors.

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10.9.2008.

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HON'BLE MR. JUSTICE DALIP SINGH

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Shri Chandra Singh, for the petitioner. Shri Rahul Kamwar, for the respondent.

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The petitioner has filed this writ petition against the order dated 6.7.2005 by which the appeal, filed by the petitioner who is the plaintiff, against the order of the learned trial court dated 23.4.2004 Annexure-2 has been dismissed upholding the order of dismissal of the application filed by the petitioner plaintiff under order 9 rule 9 C.P.C.

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The facts in brief are that the plaintiff filed a suit No.197/2003 against Chanda Devi the non petitioner herein and Chanda Devi had also filed the suit No.202/2003. The two suits were originally filed before the court of learned Civil Judge (Jr. Div.), Bharatpur. It is the case of the petitioner that the two suits one filed by the petitioner and another filed by Smt. Chanda Devi were fixed by the court on the same date till such time as they were transferred from the court of Civil Judge (Jr. Div.), Bharatpur vide order dated

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27.2.2003 to the court of Civil Judge (Jr. Div.), Nadbai District Bharatpur. The date fixed in both the suits for appearance of the parties before the court at Nadbai was the same i.e. 28.4.2003 as was happening in the past.

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On 28.4.2003 both the suits were adjourned to 10.5.2003. On 10.5.2003 the petitioner who is the plaintiff in suit No.197/2003 was not present and in his absence the date in suit No.,197/2003 came to be fixed as 27.5.2003 whereas in the suit filed by Chanda Devi suit No.202/2003 the case was adjourned for 29.7.2003 for evidence.

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On 27.5.2003 the plaintiff petitioner did not appear when the case was called, hence the learned trial court dismissed the petitioner's suit No.197/2003 on account of the non-appearance of the plaintiff.

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An application came to be filed on 19.7.2003 by the plaintiff petitioner under Order 9 Rule 9 C.P.C. for restoration of the suit No.197/2003 on the ground that on 19.7.2003 the plaintiff contacted his counsel for the preparation of the case with regard to the evidence to be recorded in the suit No.197/2003 on the premise that both the cases were fixed for evidence on 29.7.2003. On this date the petitioner came to know that his suit No.197/2003 had been dismissed on 27.5.2003 itself. Hence the present application under order 9 rule 9

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C.P.C. came to be filed on the same date. In the application it was submitted that since both the suits, one filed by the petitioner as well as the other by the non petitioner Chanda Devi while they were pending before the court at Bharatpur till their transfer to the court at Nadbai were being fixed on the same date and even after the transfer of the suit they were taken up together on 28.4.2003 and on 10.5.2003 but thereafter the date in the suit filed by the petitioner was fixed on 27.5.2003 and 29.7.2003 was fixed in the suit filed by Chanda Devi. It is submitted that on account of the past practice of the same dates being given in both the suits the petitioner look it that both the suits were fixed for hearing on 29.7.2003. Hence, he could not appear on 27.5.2003 in suit No.197/2003 and the same was dismissed for default. On coming to know of this fact on 19.7.2003 this application was filed on the same date.

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The aforesaid application was contested by the non petitioner Chanda Devi and the learned trial court dismissed the application filed by the petitioner vide order darted 23.4.2004 on the ground that the plaintiff has failed to appear on two dates i.e. 10.5.2003 and 27.5.2003 and also that the application had been filed beyond the period of limitation of 30 days. In view of the above, the learned trial court was of the view that there is no sufficient cause shown by the petitioner for the restoration of the suit and hence the application under order 9 rule 9 C.P.C.

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came to be dismissed.

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On the appeal being filed by the petitioner the learned lower appellate court vide its order dated 6.7.2005 concurring with the judgment of the learned trial court dismissed the appeal vide Annexure-3. Hence this writ petition.

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The submission of the learned counsel for the petitioner is that the petitioner bona-fide remained under the belief that as in the past both the suits were being heard together and the dates in both the suits will be the same and therefore when the case was adjourned on 10.5.2003 the petitioner was under the impression that both the cases had been adjourned for 29.7.2003. It is the case of the petitioner that on account of separate dates being given deviating from the past practice in the suits by the court at Nadbai the petitioner was unable to appear when the suit No.197/2003 was called on 27.5.2003. The learned counsel for the petitioner has submitted that the mistake is bonafide unintentional. He has further submitted that the case was being prosecuted by the plaintiff petitioner since 1994 without fail and on account of the present bonafide mistake the same was dismissed for non appearance of the petitioner. He has further submitted that efforts should be made to decide the matter on merits rather on the technicalities and the learned trial court ought to have restored the suit rather than dismiss the application under Order 9

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Rule 9 C.P.C.

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Learned counsel for the respondent on the other hand has submitted that the petitioner remained absent on 10.5.2003 as well as on 27.5.2003 and there was no occasion for the petitioner to have approached his counsel on 19.7.2003 and the plaintiff petitioner has not come forward with clean hands. He has also submitted that the petitioner has not filed any application for codonation of delay interalia under Section 5 of the limitation act as the application was filed beyond the period of 30 days.

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I have given my thoughtful consideration to the rival submission. It is not disputed that both the suits were being fixed on the same date during the trial before the court at Bharatpur in the past and by the court at Nadbai upto 10.5.2003 and the suits are pending since 1994 and the petitioner plaintiff has been pursuing the suits diligently for nine long years. Even after the transfer of the suit to the court at Nadbai the two suits were fixed before the court on the same date and thereafter therefore there may have been no reason for the plaintiff to suspect that the separate date would be given in the suits. Since both the suits are in relation to the same property was only proper that they were being heard on the same date.

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The aforesaid submission can not be ruled out that the petitioner could have

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been under a mistake belief that both the suits were fixed on the same date i.e. on 29.7.2003 and he thus could not appear before the court on 27.5.2003. The date on which the suit No.197/2003 was dismissed. It is therefore reasonable to believe the submission of the plaintiff petitioner that in the above facts and circumstances his non appearance on 27.5.2003 was on account of bonafide mistake. The date of acquiring the knowledge of the dismissal of the suit as per the application dated 19.7.2003 also stands probablised in the facts and circumstances of the case. In the aforesaid facts and circumstances it can not be doubted that the petitioner plaintiff acquired the knowledge of the dismissal of the suit on 19.7.2003. In the facts and circumstances therefore the application submitted under order 9 rule 9 of the C.P.C. by the petitioner deserves to be allowed.

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So far as the application for condonation of delay is concerned on sufficient cause being shown the court is empowered to condone the delay. Once the bonafides of the plaintiff are accepted than sufficient cause would follow that the plaintiff petitioner was under the impression that the two suits were fixed for hearing on 29.7.2003 (for evidence) and he went to his counsel for this purpose when he came to know on 19.7.2003 that the suit had been dismissed on 27.5.2003 and so on the same day the application was filed.

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In the result the impugned orders passed by the learned trial court as well as the learned lower appellate court dated 23.4.2004 and 6.7.2005 respectively are set aside. This writ petition is accordingly allowed.

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Since the proceedings in suit No.202/2003 were also stayed by this court by the interim order dated 21.11.2005 the parties are directed to appear before the trial court on 13^th October 2008. The interim order now stands vacated. The suit No.197/2003 stands restored.

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No order as to costs.

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(DALIP SINGH),J.

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Ramchandrkhatri,PS

Brijendra v. the Presiding Officer Court of

Case brief

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Brijendra v. the Presiding Officer Court of

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