CHHABI RAM RAJORIA Vs. VIJAYRAM VERMA

JUDGEMENT

(1.) Petitioner has filed this petition under Sec. 115 of CPC being aggrieved by order dtd. 13/5/2022 passed by 6th Civil Judge, Junior Sec. , Gwalior in MJC No. 261/2018; whereby, the application filed by respondent under Order IX Rule 9 read with Sec. 151 of CPC and Sec. 5 of Limitation Act have been allowed with cost of Rs.3,500.00. Briefly stated facts of the case are that respondent filed a civil suit vide No. 189-A/2014 for cancellation of sale deed dtd. 24/3/2005 against the petitioner. The case was fixed for evidence of respondent; however, neither respondent nor his counsel could not appears on the date of hearing and therefore, the suit was dismissed for non-appearance of plaintiff on 23/6/2017. After getting the knowledge about the dismissal of suit, after obtaining certified copy of the order, an application under Order IX Rule 9 read with Sec. 151 of CPC for restoration of civil suit alongwith an application under Sec. 5 of Limitation Act was filed for condonation of delay in filing the restoration application. Which has been allowed by the impugned order, hence, petitioner is before this Court.

(2.) It is the submission of learned counsel for the petitioner that the reason given for non-appearance by respondent was that his counsel wrongly noted the date of listing of matter in his diary as 23/12/2017 instead of 23/6/2017; however, the respondent has not examined the said counsel and even has not mentioned his name in his entire application and therefore, Court below erred in passing the impugned order. Further as regards delay in filing the application for restoration, the reason given that he lost his phone and therefore, was not having number of his counsel and therefore, cannot contact him; however, in his cross-examination he admitted that he has not filed any report of missing phone. Further the reason given for delay given by respondent that his mother fell down and broke her hip bone in April and thereafter died on 30/9/2017 and therefore, could not contact his counsel till 25/3/2018 also appears to be non-plausible. The respondent is Branch Manager at LIC, Bhind and therefore, it is not expected from him that he had not noted the date of hearing. Further the trial court erred in believing the story putforth by respondent without any plausible evidence and reason. In support of his arguments, he relied upon the decisions of this Court in the matter of Harikrishna Vs. Panchand, 1986 (I) MPWN 108 Gulam Mohd. Vs. State Bank of Indore,1997 (I) MPWN 242 and Laxman Singh Vs. State Bank of Indore, 2002 (I) MPWN 18.

(3.) On the other hand, learned counsel for the respondent argued in support of the impugned order and prayed for dismissal of the revision. Heard learned counsel for the parties at length and perused the record. Having heard the learned counsel appearing for the petitioner and after perusing the record, it is observed that the Court below has allowed the application by holding that the plaintiff/respondent's counsel has wrongly noted the date of hearing and therefore, could not appear on the date when the matter was fixed. The Court below has held that the delay in filing the application for restoration of civil suit has been occurred because of loss of phone respondent could not contact his counsel and in between his mother has also died after long treatment and therefore, allowed the application for condonation of delay however, with cost of Rs.3,500.00.