In a civil revision petition, the High Court dismissed the petition challenging an order allowing restoration of an application dismissed for default. The Court held no illegality existed and the plaintiff was heard.
No interference with the order allowing restoration of I.A. No.2986 of 2004; Civil Revision Petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY
Civil Revision Petition No.5674 of 2011
ORDER:
This revision is directed against the order dated 10-8-2011 passed in I.A.No.544 of 2005 in O.S.No.1181 of 2003 on the file of II Additional Civil Judge, Ranga Reddy District, whereby and whereunder, the learned Junior Civil Judge allowed the application filed under Order IX Rule 9 CPC seeking restoration of I.A.No.2986 of 2004.
2. The respondent herein is the plaintiff in O.S.No.1181 of 2003. An ex parte order came to be passed against the defendants. Thereupon, the defendants filed petition being I.A.No.2986 of 2004 under Order IX Rule 7 CPC. The said petition ended in dismissal for default on 29-7-2005. Thereupon, the defendants filed I.A.No.544 of 2005 to set aside the dismissal order dated 29-7-2005. It is stated in the affidavit filed in support of the petition that the counsel appearing for the defendants noted the hearing date as 29-11-2005 instead of 29-7-2005. For better appreciation, I may refer para (2) of the
affidavit filed in support of the application.
“ I submit that, the above I.A is filed by me along with the Written statement for setting aside the ex parte order dated 25.6.2004. The above I.A is posted to 29.12.2005 for hearing. My advocate has noted down the date of hearing in his dairy as 29.11.2005 instead of 29.7.2005 by oversight. As I have enquired with my advocate about my case he has informed me that the case is posted to 29.11.2005. As the date of hearing is so long I grew suspicious of date of hearing and requested my counsel on 29.11.2005 to verify the date of hearing once again. Upon the verification of my advocate, the case is posted to 16.12.2005 for consideration. The above I.A was dismissed for default on 29.07.2005 itself. The defendant has filed chief affidavit on 7.8.2005. My absence on 29.7.2005 is neither wilful nor wanton but due to the above reason. If this Hon’ble Court set aside the dismissal order dated 29.7.2005 in the above I.A and gives me an opportunity to contest the case no harm will be caused to the
respondent/plaintiff. Otherwise, I will suffer irreprable loss and injury which cannot be compensated by any means.”
3. The plaintiff filed counter resisting the application.
4. The learned Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to allow the application, by order dated 10-82011. Hence this revision.
5. Heard learned counsel appearing for the petitioner and perused the order impugned in the revision.
6. Learned counsel appearing for the petitioner submits that the respondents-defendants are not vigilant in filing the application and they even not served notice on the delay condonation application on the date of filing to the plaintiff and therefore, the order impugned in the revision is liable to be set aside.
7. Admittedly, the petitioner herein filed counter resisting I.A.No.544 of 2005. Therefore, it cannot be said that the order impugned in the revision has been passed without giving an opportunity to the plaintiff to resist the petition.
8. What is sought for by the respondents-defendants in I.A.No.544 of 2005 is restoration of I.A.No.2986 of 2004. The suit is stated to be still pending. In that view of the matter, I do not see any illegality or irregularity warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India.
9. The Civil Revision Petition is accordingly dismissed. No costs.
_____________________ B.SESHASAYANA REDDY, J
Dt.05-01-2012 RAR
3 issues framed by the court
Whether the High Court should interfere under Article 227 of the Constitution to set aside an order allowing restoration of an application dismissed for default.
Whether there is any illegality or irregularity in the impugned order allowing restoration of a stay application.
Whether the plaintiff was given adequate opportunity to resist the restoration application.
3 provisions across 2 enactments
The Defendant/Petitioner
The Plaintiff/Respondent
B.Seshasayana Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
