MUNJULA KRIPPENDORF PATHAK Vs. VIJAY DIXIT

JUDGEMENT

(1.) THE procedure for trial of suits despite the amendments to the CPC and the 'ever increasing docket rush can sometimes be frustrating for the litigants. It is often said that a civil case is instituted by one generation but concluded by another. That may not be always true but what is a matter of common knowledge is that considerable patience, time and money is needed for taking a civil action to its logical conclusion. The difficulties of the litigant are bound to get compounded if he or she were to fight his or her case by remote control while settled in another country, far away from the place where the case is being tried. To that if one adds the problems of old age and ailments, the task of taking the matters to fruition is rendered so much more daunting. Dismissal for non-prosecution of a suit on account of the failure of the counsel to appear while the client is living thousands of miles away in another country, is in that backdrop not an unusual event. The courts, therefore, need to keep the ground realities in view while dealing with applications for restoration and condonation of delay. That is, however, not what has happened in the instant case. The appellant, who was the plaintiff in a suit for release of property of considerable v alue situated in the Defence colony of New Delhi suffered an order of dismissal for non-prosecution but failed to have the said order recalled before the learned Single Judge who took the view that her conduct did not warrant an order of restoration. The present appeal seeks reversal of that order and restoration of the suit for trial and disposal in accordance with law.

(2.) THE plaintiff-appellant entered into a collobaration arrangement with the defendant Sh. Vijay Dixit in relation to the development of House no. B-56, Defence Colony, New Delhi standing over a plot of land measuring 325 Sq. yards. We are not, for the present, concerned with the terms and conditions subject to which the development of the property had to be undertaken nor are we concerned with the question whether and if so by whom was the said arrangement violated. Suffice it to say that after the pleadings in the suit which was filed in the year 1996 were completed, the same was dismissed for non-prosecution by a learned Single Judge of this court vide an order dated 20th May, 1999. An application for restoration of the suit was filed but only on 22nd February, 2005 in which the plaintiff-appellant set out the reasons for non-appearance on the date of dismissal of the suit and the delay in the filing of the application. The plaintiffgs case both for condonation and restoration of the suit in brief was that she is a German Citizen ordinarily residing in Germany and carrying on locum consultancy in the United Kingdom. According to her version she had engaged a counsel in Delhi upon whom she heavily relied for the conduct of her suit. The plaintiff/appellant's further case was that she was incapacitated due to serious ailment around the time the suit came to be dismissed on 20th May, 1999. The illness was, according to the appellant, on account of a painful protrusion of the intervertebral disc of the cervical 4 and5 vertbrae, evidenced by the CAT scan which required treatment at the neurosurgical unit of Tubingen University. It was further alleged by the plaintiff that due to her illness she was not in a position to keep a constant vigil on the status of the case in this Court although she expected, not without reason, that her counsel would take keen professional interest in the suit and keep her informed of the progress, if any made in the same. Contrary to her expectations and to her bad luck, the counsel did not inform the appellant that the suit had been posted for hearing on 20th May, 1999 with the result that the plaintiff assumed that the counsel would inform her should anything be required to be done on her part in the same. The absence of any intimation from the counsel also made her believe that the suit was pending for hearing and nothing further perhaps required to be done by her.

(3.) THE plaintiff-appellant's further case was that she was unable to visit india for about five years after the dismissal order was passed on 20th May, 1999 on account of her multiple health problems. She did come to India for just about four days in April, 2004 on account of a demise in her family and to attend the funeral rights of her aunt but due to her limited stay, she was unable to locate the counsel to verify about the status of her suit. In January, 2005 when the plaintiff again visited India she made sustained inquiries regarding her suit and was shocked to learn that the same had been dismissed in default by an order of the learned single Judge dated 20th May, 1999. She immediately moved an application seeking condonation of delay and for restoration of the suit which was dismissed by the learned Single judge vide the order impugned in this appeal.