MAHILA MUNNI DEVI Vs. DEVENDRA

JUDGEMENT

(1.) This miscellaneous appeal under Order 43 Rule 1 of the Code of Civil Procedure, 1908 has been filed by the appellantplaintiff taking exception to the order dtd. 2/11/2015 passed by the Additional District Judge, Lahar, District Bhind in Misc. Civil Case No.04 of 2014, whereby the application filed by the appellant under Order 9 Rule 9 of CPC along with an application under Sec. 5 of the Limitation Act has been rejected.

(2.) Facts in brief are that the appellant had filed a civil suit bearing No. 38 of 2011 seeking declaration of title and permanent injunction in her favour. The said suit came to be dismissed for want of appearance on 13-03- 2014. Thereafter, the appellant filed an application under Order 9 Rule 9 of CPC seeking restoration of the suit, along with an application under Sec. 5 of the Limitation Act for condonation of delay. It was pleaded that on the date fixed for evidence, i.e., 13/3/2014, the appellant could not appear before the trial Court as she was suffering from illness since 2013, and her counsel was also unaware of the said fact. After recovering, she contacted her counsel and came to know on 26/11/2014 about the dismissal of her suit. She obtained the certified copy of the dismissal order on 29/11/2014 and immediately thereafter, filed the restoration application. It was contended that the absence on the date of hearing was neither intentional nor deliberate and was due to bona fide reasons beyond her control.

(3.) The respondents appeared before the trial Court and opposed the applications, submitting that the appellant had failed to appear before the trial Court without any sufficient cause and that the application was hopelessly barred by limitation.