Sanyog Sharma Vs. Suresh Goel - Court Judgment

Excerpt:
- veena birbal, j.1. by way of present appeal under order 43 rule 1 of cpc, appellant has assailed impugned order dated 24.10.2008 passed by learned adj, delhi, in civil suit no. 127/2007 by which application of the appellant for restoration of suit has been dismissed.2. it is stated that the appellant i.e. plaintiff in the court below had filed a suit for declaration of account against the respondent. respondent i.e. defendant before the trial court had filed written statement on 12.7.2007. replication thereto was also filed by the appellant/plaintiff on 20.11.2007. on 15.3.2008 interim injunction application was disposed of as not pressed and the matter was adjourned to 25.4.2008 for admission/denial of documents and framing of issues. on the said date, ld. adj was on leave and the matter was adjourned to 23.5.2008. on that date the suit of the appellant was dismissed in default as there was no appearance on behalf of appellant-plaintiff. it is alleged that counsel for appellant had gone to court on that day but he had received a call from his residence about the ailment of his son in the school and as such counsel had to leave court urgently and therefore could not appear in the court when the matter was called. when counsel for appellant came back at about 3.30 p.m. he came to know that suit had been dismissed in default. the proxy counsel to whom the counsel had requested for informing the court about reason of his absence got stuck up in his own matter in another court and he could also reach the court at tis hazari for attending the above matter on that day at about 3.00 p.m. it is further stated that appellant was also not present on that date to carry out admission/denial of documents as no documents were filed by respondent. further respondent was also not present on that day. after two days thereof i.e. on 26.5.2008 counsel for appellant moved an application under order 9 rule 9 cpc seeking restoration of the suit under his signatures. the counsel also filed his affidavit giving the reasons for non-appearance which have already been stated above. however, vide impugned order dated 24.10.2008, learned trial court dismissed the application for restoration of suit.3. the main ground for dismissal of application has been that the same was not moved by the appellant/plaintiff nor was accompanied by his affidavit. the other ground on which the application has not been considered is that the appellant/plaintiff was required for admission/denial of documents on the date fixed and the plea taken in the application that counsel had informed the appellant/plaintiff not to appear is not bonafide. aggrieved with the same present appeal has been filed.4. i have heard counsel for parties and perused the record.5. learned counsel for appellant has stated that the application moved on behalf of appellant under order 9 rule 9 read with section 151 cpc for restoration of suit was moved in accordance with law. ld. adj committed illegality by not considering the same on the ground that the same is not signed by the appellant/plaintiff nor accompanied by his affidavit. it is contended that even sufficient cause has been stated in the application due to which the counsel for appellant could not attend the matter. it is further contended that the application ought not have been dismissed on mere procedural technicalities. learned counsel for appellant has placed reliance on smt. bishnupriya rath v. president of bhanjanagar college, chatrapur and ors. air 1985 orissa 108 and the airport director, airport authority of india chennai airport v. mr. gnanasekaran .6. learned counsel for respondent has not opposed the appeal. learned counsel submits that the directions may be given for learned trial court for expeditious disposal of case on merits.7. perusal of record shows that the suit was dismissed for non-appearance on 23.5.2008. application for restoration of suit was moved on 26.5.2008. the same is signed by the counsel for appellant/plaintiff and is also supported with his affidavit. it is admitted position that the vakalatnama of the said counsel was also on record who had moved the application for restoration along with his affidavit. counsel has acted on behalf of his client and the same was done to safeguard the interest of the client. further the facts mentioned in the application were also in the personal knowledge of the counsel. non-signing of the application by the appellant/plaintiff was not a serious defect and was only a procedural illegality and the application should not have been dismissed on that ground. the above view finds support from judgments relied upon by counsel for appellant.8. the other ground on which the application was dismissed is that the presence of appellant i.e. plaintiff was required for admission/denial of documents and the appellant/plaintiff did not appear on that day. learned counsel for appellant has submitted that respondent had not filed any documents on record as such question of admission/denial of documents did not arise. the said position is not disputed by learned counsel for respondent. there is nothing on record to show that appellant/plaintiff had not been diligent in pursuing the matter.9. considering the totality of facts and circumstances, i accept the appeal and set aside the impugned order dated 24.10.2008 passed by learned adj, delhi and application of the appellant under order 9 rule 9 read with section 151 cpc stands allowed and the suit is restored to its original number subject to payment of costs of rs. 5000/- in favour of respondent.10. parties to appear before learned trial court on 28th april, 2009.11. appeal stands disposed of.