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2014 DIGILAW 133 (UTT)

Prem Ballabh Tiwari v. Nagar Palika, Bhowali

2014-03-27

ALOK SINGH

body2014
Judgment Alok Singh, J. Plaintiff/petitioner, herein, has filed present writ petition under Article 226/227 of the Constitution of India assailing the judgment and order dated 25.07.2005 passed by District Judge, Nainital passed in Misc. Civil Appeal No. 16 of 2005 as well as order dated 02.06.2005 passed by Civil Judge (Jr. Div.), Nainital whereby application moved by the plaintiff/petitioner, herein, under Order 9 Rule 9 CPC to recall the order dated 18.10.2004 dismissing the suit for non prosecution and to restore the suit at its original number was dismissed. 2. Brief facts of the present case, inter alia, are that plaintiff/petitioner, herein, filed civil suit being O.S. No. 44 of 1992 in the court of Civil Judge (JD), Nainital against the defendants/respondents, herein, for mandatory injunction directing the respondents to execute a lease deed of land no. 144 B in his favour. Suit was fixed on 18.10.2004 for recording the evidence of plaintiff/petitioner, however, on that date, neither plaintiff/petitioner was present nor his counsel was present, therefore, suit was dismissed for non prosecution. Thereafter, an application under Order 9 Rule 9 CPC was moved for restoration of the suit within time with the allegation that power of attorney of plaintiff Ms. Shobha Tiwari went to her village on 17.10.2004 to bring her father Prem Ballabh Tiwari (original plaintiff) to attend the court on the date fixed, however, her father Prem Ballabh Tiwari was not well, therefore, she remained busy in attending him and could not come to the court on 18.10.2004. It was further stated in the application that counsel for the plaintiff Mr. Ramavatar was also not feeling well on that date, therefore, he requested another counsel Mr. C.P. Kapil, Advocate to remain present in the court on the date fixed. However, Mr. C.P. Kapil also could not appear before the court on 18.10.2004. Consequently, suit was dismissed for non prosecution. 3. Trial Court as well as the Appellate Court have observed that initially, suit was dismissed on 25.07.1996 for non prosecution, however, it was restored on 21.03.1997. Thereafter, again, suit was dismissed for non prosecution on 16.11.2009, however, again was restored on 19.03.2002. Thereafter, on third time, suit was dismissed for want of prosecution on 22.02.2004, however, again was restored to its original number on 27.07.2004. Thereafter, again, suit was dismissed for non prosecution on 16.11.2009, however, again was restored on 19.03.2002. Thereafter, on third time, suit was dismissed for want of prosecution on 22.02.2004, however, again was restored to its original number on 27.07.2004. Thereafter, on fourth time, suit was dismissed for want of prosecution on 18.10.2004, therefore, it could be said that plaintiff was not vigilant in prosecuting the suit and remained negligent on each and every time, therefore, reasons shown by the plaintiff to restore the suit were not found to be satisfactory. 4. I have heard Mr. Lalit Miglani, learned counsel for the petitioner and Mr. C.D. Bahuguna, Sr. Advocate for respondent no. 3 and have carefully perused the record. 5. It is true that suit was dismissed prior to 18.10.2004 three times and was restored to its original number. 6. Order 9 Rule 9 of CPC reads as under: “9. Decree against plaintiff by default bars fresh suit. – (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 7. Perusal of Order 9 Rule 9 would demonstrate that on showing sufficient cause, for remaining absent on the date fixed, when the suit was called on and dismissed for want of prosecution, it may be restored to its original number. 8. In my considered opinion, while considering the application under Order 9 Rule 9 CPC, sufficient cause to remain absent on the date fixed when suit was dismissed for non prosecution is only to be seen and not the previous conduct of the plaintiff and this is what has been held by Allahabad High Court in the case of Qaisar Sibtain Vs. District Judge, Allahabad reported in 1996 ACJ 516. District Judge, Allahabad reported in 1996 ACJ 516. Hon’ble Allahabad High Court in para 6 has held as under: “………It is established principle of law that while considering the question of grant of adjournment or recalling of an order, the past conduct is immaterial. The court has to look into the merit of the case confining to the date of the order sought to be recalled was passed. The court has to look whether sufficient ground has been made out for the default on the very date or not. Looking into the past conduct would be an extraneous consideration which the court should not go into. In that view of the matter, taking into account the past conduct does not seem to me to be fair and correct approach adopted by the learned court below.” 9. In my considered opinion, plaintiff/petitioner, herein could not be made non suited on hyper technical ground and fair opportunity should be granted to both the parties to contest the suit at its own merit. In my further opinion, defendant may be compensated by way of payment of costs, therefore, in the peculiar facts and circumstances, petition is allowed. Impugned order dated 02.06.2005 passed by Civil Judge (JD), Nainital dismissing the application filed under Order 9 Rule 9 CPC as well as judgment dated 25.07.2005 passed by Appellate Court are hereby set aside. Order dated 18.10.2004 dismissing the suit for non prosecution is hereby recalled. Suit is restored to its original number on payment of costs of Rs. 10,000/- to the defendants, on or before 11.04.2014 failing which present petition shall be deemed to have been dismissed. Parties shall remain present before the trial court on 11.04.2014 for further orders. Trial court shall proceed with the suit in accordance with law. Trial Court is further requested to explore every possibility to decide the suit at its own merit preferably within 90 days from 11.04.2014. Trial Court is further requested not to grant any unnecessary adjournment to either of the parties.