UNIVERSAL BUILDERS AND CONTRACTORS Vs. SHEILA SINGH UPPAL

JUDGEMENT

(1.) THIS revision petition has been filed against the order dated 13th May 2004 passed by Additional District Judge, Delhi in Suit No. 286/2003, whereby the application of the plaintiff under Order IX Rule 9 for restoration of suit which was dismissed in default on 7th February, 1996 was allowed Respondent No. 1 (hereinafter referred to as plaintiff) filed a suit for specific performance and damages on 5th February, 1988 in respect of the provisional booking of the flats at the fourth floor of the building called Praveen apartments (now known as golf apartments) at Sujan Singh Park South, New Delhi.

(2.) LEARNED Senior counsel for the petitioner (Defendant in the suit) has argued that the suit was dismissed in default on 7th February 1996, the respondent no. 1 was always negligent and had shown total callousness and utter disregard for prosecution of the suit and the conduct of the respondent no. 1 is apparent from the various orders passed by the learned trial court even prior to the dismissal of the suit. Learned senior counsel has also made his submission that after the dismissal of the suit on 7th February 1996 the respondent no. 1 filed an application under Order IX Rule 9 Code of Civil Procedure read with Section 151 code of Civil Procedure for restoration of the suit on 10th May, 1996 which was also not in time. He has further argued that why respondent no. 1 did not enquire from Advocate for long years about the progress of the suit and even after filing of the application under Order 9 Rule 9 Code of Civil Procedure, the record for the period 10th November 1996 to 17th January 2000 reveals that the respondent no. 1 was thoroughly negligent in taking steps for service of notice of the application to the petitioner. Lastly, it is submitted that the application is barred by limitation having been filed beyond 30 days from the date of dismissal of the suit without any application of the condonation of delay.

(3.) ON the other hand learned Senior counsel for the respondent no. 1 has made her submissions that the earlier counsel for the respondent no. 1 was bed ridden from 31st May 1992 till he expired on 3rd February 1995. It was not disputed by the respondent no. 1 that no enquiry regarding the progress of the case was made by respondent no. 1 from 31st May 1992 when her earlier counsel who became bed ridden for a period of almost 4 years, she was also not aware about the death of sh. G. R. Chopra, Advocate. Therefore, in view of above, sufficient cause exists within the meaning of Order 9 Rule 9 read with Section 151 Code of Civil procedure. It is argued that the past conduct of the respondent no. 1 has not very much relevant while deciding the application under Order 9 Rule 9 Code of civil Procedure and if the court is satisfied about the sufficient cause for non appearance then the said application is liable to be allowed. The submissions have been made that as per well settled law liberal approach should be adopted by the courts. It has been further argued that in case the application under order 9 Rule 9 has been filed beyond the time, no application under Section 5 of the Limitation Act is required and the delay should be condoned on the basis of the averments itself if the same discloses sufficient cause for delay in filing.