NARESH SUKHDEV SINDHE Vs. SEEMA BAWEJA

JUDGEMENT

(1.) The present Appeal under Order XLII Rule 1 read with Sec. 104 of the Civil Procedure Code, 1908, (the CPC) assails the correctness of the orders dtd. 19/10/2016 and 28/8/2017 in Civil Suit No. 609215/2016 on the file of the learned ADJ, West Delhi, Tis Hazari Courts.. The trial court, vide order dtd. 19/10/2016,dismissed the plaintiff/appellant's suit for declaration and injunction for default. Thereafter, the application for restoration under Order IX Rule 9 CPC, along with application for condonation of delay was also dismissed by the trial courtvide order dtd. 28/8/2017.

(2.) In this appeal, the parties herein shall be referred to in the same rank as they are arrayed in the original suit.

(3.) Brief facts necessary for the adjudication of this appeal are as follows:- The suit was posted for arguments on the issue of maintainability on 19/10/2016. On the said date, neither the plaintiff nor his counsel was present in the court, even though the case was called multiple times. Hence, the trial court proceeded to dismiss the suit for non-prosecution. Subsequently, the plaintiff filed an application for restoration under Order IX Rule 9 CPC, along with an application for condonation of delay, explaining that on the said day he was required to appear in a proceedings under Sec. 138 of the Negotiable Instruments Act, 1881 (the NI Act), which was filed by defendant no. 1 against him, which prevented his presence before the trial court. The trial court vide the impugned order dtd. 28/8/2017, dismissed both the applications holding that the plaintiff was negligent and that the delay has not been satisfactorily explained.