BINA MARRY DAVID Vs. LILLI DAYAL

JUDGEMENT

(1.) THE petitioner/applicant/plaintiff has filed this writ petition under Article 227 of the Constitution of India for issuing appropriate writ in the nature of Certiorari for quashment of the order dated 21.3.2012, (Ann. P-2) passed by the 1st Additional District Judge, Khurai in Miscellaneous Appeal No. 05/ 11 affirming the order dated 25.3.2011 passed by IIIrd Civil Judge, Class-II, Khurai in MJC No. 4/10 dismissing her application filed under Order 9 Rule 9 of the CPC for restoration of Civil Original Suit No. 70-A/09, which was dismissed for want of prosecution on account of non appearance of herself as well as of her counsel, vide order dated 24.6.2010.

(2.) THE petitioner's counsel after taking me through the averments of the petition as well as papers placed on record including the aforesaid order of the trial court dismissing the application under Order 9 Rule 9 of the CPC as well as impugned order of the appellate court dated 21.3.2012 (Ann. P-2) argued that on the date of dismissal of the Original Suit No. 70-A/09 without any pre-intimation to the petitioner her counsel did not appear in the court and for want of any information regarding such date, the petitioner could not appear. Consequently the suit was dismissed. On which by stating sufficient cause/reasons regarding aforesaid her non appearance in the original suit, the application under Order 9 Rule 9 of the CPC for restoration of the suit was filed on her behalf in the trial court. The same was dismissed without examining the merits of such application. On filing the appeal without examining the merits of the matter, the same was dismissed by the appellate court. In continuation he said that in any case by invoking the mercy jurisdiction of this court for extending the opportunity of hearing to the petitioner on merits in the original suit by admitting and allowing this petition, the original suit be directed to be restored to its original number with appropriate direction to decide the same on merits with some time bound schedule.

(3.) IT is settled proposition of law that party who pleads the facts before the Court, then such party is bound to prove such fact by adducing the evidence as per prescribed procedure under the law. It is apparent fact in the case at hand that in order to prove the alleged factum of sufficient cause as pleaded in the application under Order 9 Rule 9 of CPC, none has appeared in the witness box. In the lack of such evidence on record merely on the basis of pleadings in the application under Order 9 Rule 9 of CPC the relief as prayed in the application would not have been granted by the trial court. In such premises, the trial court has not committed any error in dismissing the petitioner's application as well as on filing the appeal the appellate court has also not committed any error in dismissing the appeal by affirming the order of the trial court.