RASHIDAN W/O ABDUL SHAKUR Vs. NOORJAHAN WIDOW OF ABDUL HAMEED SINCE DIED DURING THE PENDENCY OF THE SUIT

JUDGEMENT

(1.) By way of filing this appeal, a challenge has been led to the impugned order dtd. 30/7/2019 passed by the Additional District Judge No.4 Jaipur Metropolitan by which the application submitted by the appellants under Order 9 Rule 9 CPC has been rejected.

(2.) Learned counsel for the appellants-plaintiffs (hereinafter referred to as 'the plaintiffs') submits that a suit for eviction and mesne profit was filed by them against the defendants-respondents (hereinafter referred to as 'the defendants') in the year 1989. Counsel submits that after framing of the issues, the case was posted for recording of the evidence of the plaintiffs. Counsel submits that when the case was listed on the fateful day, i.e., on 21/9/2010, the case was deferred for 25/10/2010, but due to an inadvertent mistake, a wrong date was noted in the diary, i.e., on 25/11/2010. Counsel submits that on account of the aforesaid mistake, the case was dismissed in default on 25/10/2010 and thereafter, an application under Order 9 Rule 9 CPC along-with an application under Sec. 5 of Limitation Act was submitted for restoration of the suit and for condoning the delay in filing the aforesaid application respectively. Counsel submits that though the prescribed limitation for filing the application is 30 days, however, the said application was submitted with slight delay as the plaintiffs were out of town due to some personal and urgent domestic work. This reason was also precisely explained in the application filed under Sec. 5 of the Limitation Act seeking condonation of delay, but the said reason was not appreciated by the trial Court and in spite of deciding the restoration application on its merits, the same has been rejected on the technical count, i.e., on the ground of delay. Counsel submits that important question of law and facts are involved in the suit, which are liable to be decided and adjudicated on merits, based on the evidence to be led by both the sides and, therefore, the order impugned may be set-aside and the suit may be restored to its original number, subject to payment of adequate cost to the defendants-respondents.

(3.) Per contra, learned counsel appearing on behalf of the respondents-defendants opposed the arguments raised by counsel for the plaintiffs and submits that no justification has been prescribed by the plaintiffs for their non-appearance on the fateful day, when the case was called i.e. on 25/10/2010. Counsel submits that even there was delay in filing of the application under Order 9 Rule 9 CPC and the same has been filed without furnishing any justified reason. Therefore, the trial Court has not committed any error in passing the order impugned and the same does not warrant any interference of this Court and the instant appeal is liable to be rejected.