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2014 DIGILAW 1741 (PNJ)

Sumati Sagar Jain v. Balbir Singh

2014-12-16

RAKESH KUMAR JAIN

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JUDGMENT : Rakesh Kumar Jain, J. 1. Sumati Sagar Jain, predecessor-in-interest of the petitioners, filed a suit for declaration that the power of attorney dated 30.10.1987 and the sale deeds dated 19.10.2007 and 16.11.1987, registered on the basis of the said power of attorney, are illegal, null and void and also prayed for the consequential relief of permanent injunction to restrain the defendants from alienating the suit land in any manner. On 06.05.2009, the suit was dismissed under Order 9 Rules 2 and 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC"). The exact order passed by the Court below is as under:- "Present: None for the plaintiffs). Counsel for defendants No. 3 and 4. LR No. II of defendant No. 2 ex-parte. Case called several times during the day at different intervals. But none has come present on behalf of the plaintiffs. Even plaintiffs have not filed correct address for service of remaining defendants. Therefore, the instant suit is ordered to be dismissed u/o 9 rule 2 & 8 CPC. File be consigned to record room. Pronounced: 6.5.2009 Sd/- (Kuldip Singh) Addl. Civil Judge, Senior Division, Samana." Thereafter, predecessor-in-interest of the petitioners, filed an application under Order 9 Rule 4 of the CPC for setting aside the aforesaid order dated 06.05.2009. However, the said application was also dismissed on 30.08.2010 in the following manner:- "Present: None. ***** Case called several times during the day at different intervals. But none has come present on behalf of both the parties. Therefore, the instant case is ordered to be dismissed in default. File be consigned to record room. Pronounced: 30.08.2010 Sd/- (Kuldip Singh) Addl. Civil Judge, Senior Division, Samana." 2. Thereafter, predecessor-in-interest of the petitioners filed another application under Order 9 Rule 4 of the CPC for setting aside the order dated 30.08.2010 and for restoration of the earlier application filed under Order 9 Rule 4 of the CPC but the said application was dismissed vide order dated 16.07.2014 which has been challenged by the petitioners in the present revision petition. 3. Counsel for the petitioners has also filed an application bearing CM No. 27927-CII of 2014 seeking permission to place on record the accompanying affidavit of Ila Jain (now Ila Bansal) wife of Sandeep Bansal. 4. The said application is allowed and the affidavit of Ila Jain is taken on record. 5. 3. Counsel for the petitioners has also filed an application bearing CM No. 27927-CII of 2014 seeking permission to place on record the accompanying affidavit of Ila Jain (now Ila Bansal) wife of Sandeep Bansal. 4. The said application is allowed and the affidavit of Ila Jain is taken on record. 5. Counsel for the petitioners has argued that since the advocate appearing on their behalf was suffering from jaundice and typhoid, therefore, he could not appear in the Court on 30.08.2010. It is submitted that the advocate Shri Sunil Gupta has refused to file his affidavit and thus the affidavit of Ila Jain has been filed. It is submitted by him that if the impugned order is not set aside, they would not be able to pursue the suit and thus requested that the impugned order may be set aside, subject to payment of costs. 6. I have heard learned counsel for the petitioners and examined the available record with his able assistance. 7. On 06.05.2009, the suit of the petitioners was dismissed by the Court under Order 9 Rules 2 and 8 of the CPC. Order 9 Rule 2 of the CPC was invoked by the Court because of the failure on the part of the plaintiff to pay the process fee or postal charges due to which the summons could not be served upon the defendants and Order 9 Rule 8 was invoked because the plaintiff did not appear when the case was called for hearing. Predecessor-in- interest of the petitioners, however, filed the application only under Order 9 Rule 4 of the CPC which provides that where the suit is dismissed under Order 9 Rules 2 and 3 of the CPC, the plaintiff may apply for setting aside the order of dismissal but here not only the suit was dismissed under Order 9 Rule 2 of the CPC but also under Order 9 Rule 8 of the CPC for which the application should have been filed by the petitioners under Order 9 Rule 9 of the CPC as well. 8. In any case, the petitioners' application filed under Order 9 Rule 4 was again dismissed by the trial Court because of non-appearance despite the fact that the case was called several times during the day at different intervals. 9. 8. In any case, the petitioners' application filed under Order 9 Rule 4 was again dismissed by the trial Court because of non-appearance despite the fact that the case was called several times during the day at different intervals. 9. In order to revive the said application, the petitioners filed another application under Order 9 Rule 4 of the CPC which has also been dismissed by the trial Court as it could not find any sufficient cause for the non-appearance of the petitioners or their advocate. The Court had found that neither the petitioners nor their advocate filed the affidavit disclosing the reason for not appearing at the time when the case was called for hearing and now it is submitted that the advocate has refused to give his affidavit. Although the reason has been assigned that he was suffering from jaundice and typhoid but no medical evidence has been produced to win the confidence of the Court. Thus, in view of the aforesaid circumstances, the petitioners have been found to be completely negligent in pursuing the suit, therefore, no error is found in the order of the Court below for the purpose of interference by this Court. Resultantly, the present revision petition is hereby dismissed being denuded of any merit.