SANYOG SHARMA Vs. SURESH GOEL

JUDGEMENT

(1.) BY way of present appeal under Order 43 Rule 1 of CPC, appellant has assailed impugned order dated 24. 10. 2008 passed by learned ADJ, delhi, in civil suit No. 127/2007 by which application of the appellant for restoration of suit has been dismissed.

(2.) IT is stated that the appellant i. e. plaintiff in the court below had filed a suit for declaration of account against the respondent. Respondent i. e, defendant before the trial court had filed written statement on 12. 7. 2007. Replication thereto was also filed by the appellant/plaintiff on 20. 11. 2007. On 15. 3. 2008 interim injunction application was disposed of as not pressed and the matter was adjourned to 25. 4. 2008 for admission/denial of documents and framing of issues. On the said date, Id. ADJ was on leave and the matter was adjourned to 23. 5. 2008. On that date the suit of the appellant was dismissed in default as there was no appearance on behalf of appellant-plaintiff. It is alleged that counsel for appellant had gone to court on that day but he had received a call from his residence about the ailment of his son in the school and as such counsel had to leave court urgently and therefore could not appear in the court when the matter was called. When counsel for appellant came back at about 3. 30 P. M. he came to know that suit had been dismissed in default. The proxy counsel to whom the counsel had requested for informing the court about reason of his absence got stuck up in his own matter in another court and he could also reach the court at tis Hazari for attending the above matter on that day at about 3. 00 P. M. It is further stated that appellant was also not. present on that date to carry out admission/denial of documents as no documents were filed by respondent. Further respondent was also not present on that day. After two days thereof i. e. on 26. 5. 2008 counsel for appellant moved an application under Order 9 Rule 9 CPC seeking restoration of the suit under his signatures. The counsel also filed His affidavit giving the reasons for non-appearance which have already been stated above. However, vide impugned order dated 24. 10. 2008, learned trial court dismissed the application for restoration of suit.

(3.) THE main ground for dismissal of application has been that the same was not moved by the appellant/plaintiff nor was accompanied by his affidavit. The other ground on which the application has not been considered is that the appellant/plaintiff was required for admission/denial of documents on the date fixed and the plea taken in the application that counsel had informed the appellant/plaintiff not to appear is not bona fide. Aggrieved with the same present appeal has been filed.