GITA MITTAL, J. ( 1 ) THIS application has been filed by the plaintiff under the provisions of Order 9 Rule 4 of the Code of Civil Procedure praying for setting aside of the order dated 23rd February, 2004 dismissing the suit of the plaintiff for default of appearance. The plaintiff has contended that the matter was listed before the Joint Registrar under orders of the court on 6th January, 2004 and the same was renotified to 28th April, 2004 The plaintiff/applicant did not have notice or information regarding the listing of case on 23rd February, 2004 and consequently had not appeared in the matter. ( 2 ) THE plaintiff has further pointed out that the present case was being listed alongwith CS (OS) No. 446/2003. On 6th January, 2004 the suit had been renotified by the Joint Registrar for admission/denial of documents on 28th april, 2004 it is asserted that none appeared on behalf of the plaintiff in these circumstances on 23rd February, 2004 and for this reason this court has dismissed the suit on this date. ( 3 ) SO far as information with regard to the dismissal of the case is concerned, learned counsel for the applicant has pointed out that CS (OS) No. 446/2003 was listed for hearing on 13th April, 2004 On this date, the plaintiff found that the present suit being CS (OS) No. 441/2003 was not listed. Consequently, counsel for the plaintiff moved an urgent application for inspection of the record of the present case on 15th April, 2004 On inspection of the record of this case, it was revealed that the suit had been dismissed for default of appearance. This application was consequently drafted immediately thereafter and was filed in this court on 27th April, 2004 it is further contended that the application has been filed within 30 days of the knowledge of the dismissal of the suit which was obtained on 15th april, 2004 ( 4 ) THE application has been strongly opposed on behalf of the defendants. Mr. Neeraj Kaul, learned senior counsel representing the defendant no. 1-Institute has submitted that the application is malafide and deserves to be dismissed on grounds of the fraudulent conduct on the part of the plaintiff. Mr. Neeraj Kaul, learned senior counsel representing the defendant no. 1-Institute has submitted that the application is malafide and deserves to be dismissed on grounds of the fraudulent conduct on the part of the plaintiff. It is pointed out that alongwith the application, the plaintiff has enclosed what according to it is a true copy of the order dated 6th January, 2004 However the order enclosed as an annexure with the application is an incomplete reproduction of the correct order. According to learned senior counsel the defendant is guilty of fraud and deliberate concealment of material facts inasmuch as the portion of the order dated 6th January, 2004 which has not been typed is the part which records that the plaintiff had been absenting himself from the proceedings for the last two dates and this fact was noticed in the order dated 6th January, 2004 Placing reliance on the pronouncement of the Apex Court in air 1994 SC 853 S. P. Chengalvaraya Naidu (dead) by L. Rs. v. Jagannath (dead) by l. Rs. and Ors. , it has been urged that the present application deserves to be rejected on this short ground alone inasmuch as the Apex Court has held that fraud and concealment of material facts disentitle a party to any relief and that the plaintiff who is guilty of such conduct is required to be non-suited at the earliest. It is further contended that the application does not show sufficient cause for setting aside of the order dated 23rd February, 2004 ( 5 ) I have heard learned counsel for the parties and given my considered thought to the respective contentions. ( 6 ) FROM a close perusal of the record, I find that on the 6th January, 2004, the Joint Registrar had placed IA No. 8577/2003 before the court on 23rd february, 2004 for the reason hat the plaintiff had failed to file a reply thereto. So far as the further proceedings in the suit are concerned, on 6th january, 2004 the Joint Registrar had given time to the plaintiff to file its replication to the written statement of the defendants within a period of two weeks. So far as the further proceedings in the suit are concerned, on 6th january, 2004 the Joint Registrar had given time to the plaintiff to file its replication to the written statement of the defendants within a period of two weeks. The parties were also directed to file original documents within a period of four weeks and the matter was directed to be renotified for completion of pleadings and admission/denial of documents for 28th April, 2004 Thus the suit was adjourned for further proceedings to 28th April, 2004 IA No. 2245/2003 was also listed on 6th January, 2004 and it was directed that pleadings in this application be completed. There was no date fixed in this application. ( 7 ) WHEN the matter was listed before the court on 23rd February, 2004 for hearing of IA NO. 8577/2003 only defendant nos. 1, 3 and 4 who were the applicants in this application were represented before the court. The matter was taken up after being passed over once. However none appeared for the plaintiff on both calls. It was not pointed out to the court on this date that the suit stood adjourned for further proceedings to 28th April, 2004 before the joint Registrar. In these circumstances, the court under an erroneous impression that the suit itself was listed for hearing, noticed the non-appearance on behalf of the plaintiff and also the fact that there had been no appearance for the plaintiff before the Joint Registrar on previous dates and dismissed the suit in default. IA Nos. 8577/2003 and 2245/2003 were consequently dismissed as infructuous. ( 8 ) IT is evident that the suit having been adjourned to 28th April, 2004, could not have been taken up for hearing on 23rd February, 2004 The absence of the plaintiff in the proceedings in the suit on 23rd February, 2004 cannot therefore be faulted. The court had every jurisdiction to proceed on the application which was listed for hearing on that date. However, in view of the order of dismissal being passed in the suit, the application was dismissed as infructuous. ( 9 ) IT is trite that no act of the court should prejudice a party. This error in taking up the suit for hearing on 23rd February, 2004 and dismissing the same is the consequence of an erroneous impression that the suit was listed. ( 9 ) IT is trite that no act of the court should prejudice a party. This error in taking up the suit for hearing on 23rd February, 2004 and dismissing the same is the consequence of an erroneous impression that the suit was listed. Therefore in view of the order passed on 6th January, 2004, the order dated 23rd february, 2004 dismissing the suit cannot be sustained. ( 10 ) MR. Neeraj Kaul, learned senior counsel appearing for the defendant has urged at great length that the plaintiff's application for restoration of the suit deserves to be dismissed for the reason that the plaintiff has deliberately and fraudulently enclosed an incomplete copy of the order with the application and that the same amounts to material misrepresentation and fraud. ( 11 ) I find that undoubtedly the copy of the order dated 6th January, 2004 which has been enclosed as an annexure with the application is incomplete. However I find that Mr. Subodh Pathak, learned counsel representing the plaintiff has filed an affidavit dated 12th December, 2005 explaining that the copy of the order which was enclosed with IA No. 2888/2004 was incomplete and came to be filed on account of a bonafide error. It has been submitted that what came to be filed as a copy of the order, was actually notes of inspection of learned counsel which was not a complete copy. It is pointed out that the complete proceedings were on record before this court in the original record. ( 12 ) I have carefully considered the explanation given on behalf of the plaintiff. Perusal of the application shows that the same was drafted shortly after the stated date of inspection. Learned counsel for the plaintiff has sworn an affidavit that the error in enclosing a written copy of the order has occurred on account of the haste in the application was drafted and in any case he has expressed regret for the error. Having regard to the complete conspectus of the facts noticed hereinabove, I am inclined to accept the bonafide of learned counsel for the plaintiff and the explanation which has been rendered for inclusion of such incomplete copy of the order as an annexure in the form in which it has been done. Having regard to the complete conspectus of the facts noticed hereinabove, I am inclined to accept the bonafide of learned counsel for the plaintiff and the explanation which has been rendered for inclusion of such incomplete copy of the order as an annexure in the form in which it has been done. Counsel has stated that the same is only a note of the inspection of the orders passed by this court and that reliance is placed on the order which exist on the file. ( 13 ) THERE can be no dispute with the principles laid down by the Apex court in AIR 1994 SC 853 S. P. Chengalvaraya Naidu (dead) by L. Rs. v. Jagannath (dead) by L. Rs. and Ors. and the same bind this court. However, the same have to be applied in the facts and circumstances of each case. ( 14 ) HAVING considered the rival contentions and having perused the record, i find force in the explanation rendered by counsel for the plaintiff so far as the filing of the incomplete order is concerned. Learned counsel has expressed a regret for the mistake and I am inclined to accept the explanation rendered. There is no requirement in law for filing of a copy of the relevant order in support of an application under Order 9 of the Code of Civil Procedure wherein a prayer is made for setting aside of the ex-parte proceedings. ( 15 ) IN view of the above discussion, I am further of the view that the suit was not listed on 23rd February, 2004 and stood adjourned to 28th April, 2004 As such the same could not have been taken up for hearing and dismissed for default of appearance on 23rd February, 2004 In the instant case, I have accepted the explanation given by the counsel for the plaintiff regarding the annexure which was filed. However, undoubtedly more care should have been taken at the time of filing of the application and the same ought not to have been filed in such casual manner. Furthermore, I find from the record that the present case is being pursued casually by the plaintiff who has not cared to even complete the pleadings so far. Consequently, while allowing the application, in my view the plaintiff deserves to pay costs which are quantified at Rs. Furthermore, I find from the record that the present case is being pursued casually by the plaintiff who has not cared to even complete the pleadings so far. Consequently, while allowing the application, in my view the plaintiff deserves to pay costs which are quantified at Rs. 20,000/- which shall be apportioned equally between the defendant no. 1 and the Delhi High Court Legal Services Committee. Subject to the payment of costs, the order dated 23rd February, 2004 is therefore set aside. Costs shall be paid within two weeks from today.