Praveen Kumar @ Praveen Madan v. Baby Sachdev @ Reeta Sachdev

, !i DELHI * IN TIIE HIGH COURT OF DELHI AT NEW + FAO 30ll20ll .. a I^IV o Dateof Decision: October 11 20t2 PRAVEEN KUMAR @ PRAVEEN MADAN ""' Appellant Through : Mr.Satish Kumar, Advocate versus BABYSACIIDEV@KR.REETASACHDEV.....Respondent Through : Ms.Isha Khanna, Advocate CORAM: IION'BLE MS. JUSTICE VEENA BIRBAL VEENA BIRBAL. J. +

¶1BV wa.V of this appeal under Order XLIII Rule 1(c) read with Section 151 of CPC, a challenge has been made to the irnpugned order dated 4ft April, 20ll by which application of the appellant under Order IX Rule 9 read with section 151 CPC for restoration of suit which was dismissed for non appearance, has been dismissed'

¶2Briefly the facts relevant for disposal of the present appeal are as under:- Appellant herein i.e., plaintiff before the learned trial court had . filed a suit for specific performance of agreement dated 13tr' June' +{. I , , Page I of6 \ 2005 and/or in the alternative for recovery of Rs.8,50,000/- against respondenvdefendant. The summons of the suit were served on the respondenvdefendant. Along with the suit, an application under order 39 Rule 1 and 2 CPCwas also moved. On 3'd October, 2006,1eamed trial court had ordered for maintaining status quo regarding ownership ofthesuitproperty.Pleadingswerecompletedon2t.3.200T.on 28th April, 2008, suit was dismissed for non prosecution' Subsequently an application under order IX Rule 9 read with section 151 CPC was mQved for setting aside the order dated 28th April' 2008' On 2nd September, 2008, the ld. trial court transferred the case to the court of learned Addl. District Judge, Tis Hazari courts, Delhi as the connected matter between the parties was transferred there on receipt of order no.I6lGaz-INI.E.2(a)12008 of this court' vide order dated 13ft Febru ary,200g, the application under order IX Rule 9 read with section 151 CPC was allowed and suit was restored to its original number subject to cost of Rs.1000/-. Thereafter the case was listed on Ig.5.2009 for admission/denial of documents. However, the suit was again dismissed on that date due to non appearance of appellant' It is alleged that counsel for the appellant did not inform the appellant about the listing of the case on 1g.5.200g, as a result of which he could not appear before the court. It is alleged that the counsel for appellant had been ensuring that he was handling the matter. On l't July, 2010, appellant's counsel informed that suit was listed in the court of learned ADJ at Karkardooma, Delhi. Appellant/plaintiff went to the said court but could not find the case there. Again he contacted his counsel on phone but counsel did not respond to his telephone. Thereafter, 1f t @ from courl 1'\ appellant engaged another counsel who verified the status record and informed him that case has already been dismissed in default on 19.5.2009. The new counsel inspected the court record and obtained certified copy of the order and thereafter moved an application under order IX Rule 9 read with section 151 cPC for restoration of the suit. It is alleged that appellant has also filed a complaint against the previous counsel with the Bar council of Delhi stating the misconduct of his previous counsel'

3.Noticeoftheaforesaidapplicationwasissuedtothe respondent/defendant who had appeared there and sought time for filing reply. Thereafter, respondenvdefendant did not file reply and wasproceededexpartevideorderdated3.l.20ll.Theaforesaid application of the appellanVplaintiffwas dismissed by the learned trial courtvideimpugnedorderdated4.4.20I|.Aggrievedwiththesame, present aPPeal is filed.

¶4Learned counsel for the appellant has argued that appellant had' beendiligentlypursuinghiscase.Nonappearancebytheappellanton Ig.5.2otig was neither deliberate nor intentional' It is submitted that appellanthadbeenregularlyfollowingupthematterwithhiscounsel who had been giving various dates to him. It is contended that counsel for appellant did not inform him about the date fixed in the matter i'e'' lg.5.2OO9 due to which there in non appearance on behalf of the appellant/plaintiff on the said date. It is stated that when enquiries were made by the appellanvplaintif4 it was revealed that matter has alreadv been dismissed for non appearance' Appellant filed an (/ I Page 3 of6 I

(6) application for restoration of the suit within 30 days of getting\F knowledge about dismissal of the suit. It is contended that appellant should not suffer due to lapse on the part of his counsel' It is further submittedthatappellantwasinregulartouchwithhisprevious counsel. Learned counsel has contended that there is no fault of appellantandthesuitwasdismissedduetoaforesaidreasons.In supportofhiscontention,learnedcounselforappellanthasreferredto thejudgmentofthesupremeCourtinRafiqandanrvs.Munshilaland Anr: AIR 1981 SC 1400'

5.ontheotherhand,learnedcounselappearingfortherespondent has contended that appellant was not pursuing his case in a diligent manner.Itiscontendedthatnonappearancewasdeliberateand appellagtwantstodelaythematterandisharassingtherespondent.

6.Ihaveheardlearnedcounselforthepartiesandperusedthe material on record. T.Thestandoftheappellant/plaintiffisthatduetofaultofhis previouscounselinnotinformingtheappellantaboutthedateof hearing, the case was dismissed in default. The appellant has given the detail reasoning as to how he came to know about the dismissal of the case. The application under order IX Rule 9 read with section 151 cpc was supported with the affidavit of the appellant. No reply to the said application has been filed by the respondent/defendant before the trialcourt.Theapplicationisalsosupportedwithcomplaintmadeby appellantagainsthispreviouscounselwiththeDelhiBarCouncil alongwithfeereceiptofRs.300/.dated16'8.2010.Thereisnoreason f,: 't FAO 301/201I Page 4 of6 A( tt l \/ there is no +.' .I F- {I to disbelieve the affidavit of appellant specially when rebuttal by respondent to the said affrdavit. In Rafiq and anr Vs. Munshilal and anr (supra), it has been held that parties should not suffer due to the lapse on the part of his counsel'

¶8The suit filed by the appellant is for specific performance or in the alternative for recovery of Rs.8,50,000/- and the requisite court was also paid by the appell ant/plantiff at the time of filing of the suit' The pleadings have already been completed and the case is at the stage of admission/denial of documents. The record shows that in between, there were mediation proceedings and both the parties were appearing in the mediation also. There is nothing on record to show that there was any deliberate attempt.on the part of appellant/plaintiff for non appearing in the matter or that the appellant is trying to delay the outcome of the case, as is alleged. The appellant/plaintiff will not gain anything by the delay, as is alleged. g. The reasons given by the appellant in the application cannot said to be false or an afterthought. It is settled law that the word ,.sufficient cause" should receive liberal construction So as to advance substantial justice when no negligence or inaction or want of bonafide is imputed to a party. In the present case, the affidavit of the appellant supported with application under order IX Rule 9 read with section 151 CPC does not show that there was any negligence on his part' Application is moved within 30 days after coming to know that suit has been dismissed for non appearance. For the delay caused in the matter, respondent/defendant can be compensated with costs. Further n FAO 301/201I Page 5 of6 fjr iir the ends ofjustice would be met if the matter is heard and decided on merits. In view of the above discussion, the impugned order is set aside and the application of the appellant under Order IX Rule 9 CPC is allowed, subject to payment of costs of Rs.15000/- to be paid by the appellanVplaintiff to the respondenVdefendant. The delay in filing the same is also condoned. The Suit is restored to its original number. Costs be paid within four weeks. Appeal stands allowed accordingly. Parties to appear before the ld.trial court on7.Lt.2012. Trial court record be sent back forthwith. CM 4435l2012(under Order 1 Rule 10 CPC) In view of the order passed in the appeal, no order is required on this application. The same stands disposed of accordingly. VEENA BIRBAL, J October 19 ,2012 ssb FAO 301/201r Page 6 of6