Allowed

Rajendra Kumar v. Smt.Mangla Devi

Rajasthan HC22 Mar 2024CMA/4963/2011

Case brief

AI extract

What is this about?

The appellant challenged the dismissal of his application under Order 9 Rule 9 CPC seeking to set aside an order dismissing a suit for cancellation of a gift deed due to non-prosecution. The High Court allowed the appeal, quashed the impugned order, and remanded the matter to the Trial Court to restore the suit and record evidence on strict conditions and heavy costs, relying on liberal constructi

What did the court decide?

Impugned order quashed and set aside; appeal allowed at a cost of Rs.25,000/-. Suit restored for recording evidence on strict conditions.

Rajendra Kumar Vs Smt.Mangla Devi — Property and Title | Rajasthan HC (2024)

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[2024:RJ-JD:13873]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 4963/2011

Rajendra Kumar

----Appellant

Versus

Smt.Mangla Devi

----Respondent

For Appellant(s)	: Mr.Jayant Joshi.
For Respondent(s)	: Mr.Jitendra Ojha.

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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22/03/2024

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The present appeal has been preferred against the impugned order dated 17.09.2011 passed by Additional District Judge, Sojat, District Pali in Civil Misc. Case No.16/2010 whereby, the application under Order 9 Rule 9 read with Section 151, CPC as preferred on behalf of the plaintiff, was dismissed.

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Brief facts of the case are that a suit for cancellation of gift deed as well as permanent injunction was filed by the plaintiff in the year 2008. In the said suit, after the issues been framed, time was granted by the learned Trial Court for plaintiff’s evidence for the first time on 21.11.2009. Since then, almost 6-7 opportunities were granted including the last opportunity at a cost of Rs.500/however, the plaintiff’s evidence could not be led and on 07.07.2010, neither any witness nor the counsel on behalf of the plaintiff appeared and hence, the learned Trial Court proceeded on to dismiss the suit for non-prosecution.

[2024:RJ-JD:13873]

[CMA-4963/2011]

(2 of 5)

For setting aside the said order of 07.07.2010, an application under Order 9 Rule 9 read with Section 151, CPC was preferred on 18.09.2010. The said application was rejected by the learned Trial Court vide order impugned dated 17.09.2011 on the ground that no sufficient cause for non-appearance on 07.07.2010 had been furnished. The learned Trial Court further observed that the application was not supported by the affidavit of the counsel qua whom the ground had been raised that inadvertently the date as fixed was not noted by him in his daily diary. The learned Trial Court further observed that sufficient opportunities had been granted to the plaintiff to lead his evidence but despite the same, on 07.07.2010 neither any witness nor the counsel appeared.

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Learned counsel for the appellant submits that although no sufficient reason for non-appearance of the plaintiff, plaintiff’s witnesses or the counsel on 07.07.2010 is available on record but then, the application for setting aside the order dated 07.07.2010 was moved within a period of two months only i.e. on 18.09.2010. Counsel submits that the learned Trial Court should have adopted a liberal approach in the matter and ought to have set aside the order dated 07.07.2010. Counsel further undertook before this Court that if the appeal is allowed and the plaintiff is granted an opportunity to lead the evidence, he would not seek any further adjournment ever in the suit and specific conditions to that effect be imposed by this Court. In support of his submission, he relied upon the judgment of Hon’ble Karnataka High Court in the case of V. Narayanaswamy vs. Smt. Doddavenkatamma and Ors. ; 2006(1) KARLJ 566 .

[2024:RJ-JD:13873]

[CMA-4963/2011]

(3 of 5)

Per contra, learned counsel for the respondent submitted that it is clear on record that the non-appearance of the counsel or the plaintiff’s witnesses on 07.07.2010 was intentional and malafide. The said non-appearance was after more than ten opportunities been granted by the Court for leading plaintiff’s evidence. Hence, the order impugned is totally in consonance with law.

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Heard learned counsel for the parties and perused the material available on record.

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This Court is of the opinion that the non-appearance of the counsel on 07.07.2010 cannot be said to be unintentional or bonafide. The said fact is also substantiated from the fact that no affidavit of the counsel has been annexed with the application. It seems that the plaintiff did not instruct his counsel and hence, the counsel was left with no other option than to not appear before the Court.

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However, as is clear from the record, the present was a suit for cancellation of gift deed which definitely is a dispute pertaining to a civil right of the plaintiff.

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The Hon’ble Apex Court in the case of GMG Engineering Industries and Ors. vs. ISSA Green Power Solution and Ors. , (2015) 15 SCC 659 held as under :-

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"8. It is well settled that the expression 'sufficient cause' is to receive liberal construction so as to advance substantial justice. ”

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Further, the Hon’ble Apex Court in the case of Robin Thapa

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Vs. Rohit Dora, (2019) 7 SCC 359 held as under :-

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"8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties.

(4 of 5)

[2024:RJ-JD:13873]

[CMA-4963/2011]

Litigation should not be terminated by default, either of the Plaintiff or the Defendant. The cause of justice does require that as far as possible, adjudication be done on merits."

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It is clear on record that the application for setting aside of the order dated 07.07.2010 was preferred just within a span of two months and thus, in view of the ratio as laid down by the Hon’ble Apex Court in the aforesaid judgments, the approach of the Court while dealing with the matters wherein a litigation is terminated for default/non-prosecution, should be liberal and with an intent to impart justice. The dismissal of the suit for nonprosecution definitely would lead to the civil rights of a litigant being curtailed for ever. In the opinion of this court, the learned Trial Court ought to have allowed the application, may be, on heavy and exemplary costs and, may be, on certain strict conditions.

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In view of the above observations, the impugned order dated 17.09.2011 is hereby quashed and set aside and the appeal is allowed at a cost of Rs.25,000/-. Both the parties shall appear before the learned Trial Court on 22.04.2024 and the plaintiff shall keep all his witnesses present on the said date. It would be within the domain of the learned Trial Court to get the plaintiff’s evidence recorded on the said date or to adjourn the matter for further dates as per the Court’s convenience.

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It is made clear that if, at any stage, it is found that the plaintiff is trying to linger the matter, the learned Trial Court shall be at liberty to pass appropriate orders.

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