ROHIT Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal has been preferred by the Appellants against the order dtd. 6/4/2022 (Annexure A-1) passed in MJC No. 15/2019, passed by the Additional District Judge, Camp Court, Kurud, District Dhamtari (C.G.) whereby the Court below has dismissed the application filed by the Appellants under Order 9 Rule 9 of the Civil Procedure Code for restoration of Civil Appeal No.311/2012.

(2.) Facts of the case are that the Appellants/Plaintiffs have filed a civil suit for declaration and permanent injunction against the Defendants therein and the suit was dismissed by the Trial Court. Being aggrieved by the dismissal of the suit, the Appellants preferred First Appeal under Sec. 96 of the Civil Procedure Code, 1908 which was registered as Civil Appeal No. 311/2012. The Appeal was fixed for hearing on 10/5/2019, however, on the said date the appeal was dismissed for non-appearance of the Appellants and their Advocate. Since, the Counsel for the Appellants was unwell on the date of hearing, therefore, he could not attend the hearing on that date. Immediately after he recovered from his illness, he inquired about the status of the appeal and came to know about the dismissal of the same, thereafter, the Appellants filed an application under Order 9 Rule 9 of the Civil Procedure Code which was dismissed by the Court below vide impugned order dtd. 6/4/2022. Hence, this appeal.

(3.) Learned Counsel appearing for the Appellants submits that despite of the fact that the Counsel for the Appellants has filed his personal affidavit on 15/5/2019, wherein, he has categorically mentioned that he could not attend the proceedings of the Civil Appeal on 10/5/2019 on account of his ill health, the Court below has dismissed the application stating that the reasons assigned for non-appearance is not sufficient as no affidavit has been filed as to the ill health of the Counsel. Therefore, order passed by the Court below is illegal, arbitrary and erroneous which may liable to be set-aside.