SUSHILA SHARMA Vs. SUNIL MALVIYA

JUDGEMENT

(1.) This civil revision under section 115 of Civil Procedure Code has been filed by the defendant/applicant against the order dated 16.04.2018 passed by the learned Fifth Additional Judge to the Court of First Additional District Judge, Bhopal in M.J.C. No.268/2017 whereby the learned Judge of the Trial Court has allowed the application of the plaintiff/non-applicant filed under Order 9, Rule 9 of Civil Procedure Code for restoration of Civil Suit No.376- A/2011 which was dismissed for want of prosecution by invoking proviso to Rule 1 of Order 17 of Civil Procedure Code on 28.02.2017 as the non-applicant/plaintiff had already availed more than three adjournments by that date.

(2.) In brief the facts of the case are that the plaintiff had preferred the civil suit on 11.07.2011 for specific performance of contract dated 29.06.2009 as also for permanent injunction against the defendant/applicant. In the aforesaid suit, after the notices were served on the defendant, written statement was also filed by her and the issues were framed on 23.08.2013.

(3.) The case of the applicant/defendant is that despite many opportunities granted to the plaintiff/non-applicant, he failed to adduce his evidence and lastly on three occasions, namely, 30/6/2016, 08/08/2016 and 10/02/2017 the adjournments were granted to the plaintiff to adduce the evidence on cost and on 28.02.2017 when the plaintiff was required to adduce his evidence, instead of giving evidence, an application under Order 17, Rule 1 of Civil Procedure Code was filed for adjournment of the case and the Trial Court vide its order dated 28.02.2017 dismissed the suit on account of non-appearance of the plaintiff but in the presence of the counsel for the plaintiff. After the aforesaid suit was dismissed, an application under Order 9, Rule 9 read with section 151 of Civil Procedure Code was filed by the plaintiff for restoration of the same which was registered as MJC No.268/2017 along with an application under Sec. 5 of the Limitation Act for condonation of delay in filing the said application. In the said application, the plaintiff averred that on 28.02.2017 when the matter was fixed for leading the evidence, he was not in Bhopal and hence he could not mark his presence before the Court, however the intimation regarding dismissal of the suit was given by the counsel for the plaintiff on 22.3.2017 only and as the plaintiff was already indisposed on 20.3.2017, he could not prefer an application for restoration of the suit within 30 days' time and as such the application was filed after a delay of 06 days. The said application as also the application for condonation of delay was allowed by the learned Judge of the Trial Court vide its order dated 16.04.2018 holding that since the plaintiff has already incurred huge expenses in contesting the suit as he has not only paid an advance amount to the defendant but has also paid court fee of Rs. 1,51,000.00 towards filing of the suit and as such only on technical grounds the plaintiff cannot be deprived of his right to contest the suit, hence the application for restoration of suit was allowed at the cost of Rs. 5000.00.