Final Order 9

Order Details: COPY OF ORDER
Pdf Text: MISC DJ 141/23
DR NAIPAL SINGH Vs. CHANDRA KANTA
07.06.2024
Pr: Applicant in person.
It is submitted by the plaintiff that an application for restoration of suit
under order IX Rule 4 &5 CPC is pending adjudication.
Arguments heard. Record perused and considered.
1. Applicant submitted that on 19.02.2022 plaintiff appeared and case was
adjourned for 05.04.2022 but no entry of 05.04.2022 could be recorded in the
diary of plaintiff, therefore, case had not been recorded in diary of plaintiff for
the year 2022 and therefore, plaintiff could not know the dates in the present
case as repeated fixed till 06.06.2023 the present suit was dismissed for non
appearance of the plaintiff.
2. It is also submitted that the applicant/plaintiff is about 77 years of age
and being an old senior citizen, and that as no entry of dates could be recorded
through out the year 2022 till 06.06.2023 as he forgot the first entry on
05.04.2022, thereafter, applicant/plaintiff could not know the dates till
dismissal of the suit on 06.06.2023 and same was unintentional and due to
failure of memory for recording the case in his diary and prayed to restore the
present suit to its original number.
3. The present application has been filed by the plaintiff under Order IX
rule 4 and 5 CPC. However, perusal of main case file, reveals that the
plaintiff/applicant filed a review petition u/sec. 114 r/w Order 47 Rule 1 CPC
to recall the order dt. 20.01.2016 whereby his plaint was rejected under Order
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7 Rule 11 CPC. In review petition, the notice was issued to the respondent and
the respondent appeared on 11.04.2016. The respondent filed his reply to
review petition on 01.07.2016, thereafter, rejoinder was filed by the applicant
on 29.08.2016. On subsequent dates, the matter was adjourned for arguments
for one reason or another. On six subsequent, dates i.e. 05.04.2022,
12.07.2022, 01.10.2022, 09.01.2023,07.03.2023 and 18.04.2023, no one
appeared on behalf of applicant. Only then on seventh date of hearing, after
giving several opportunities, Ld. Predecessor of this court dismissed the
review petition of applicant for non prosecution.
4. To support his plea, the applicant produced his diary showing no entry,
in respect of dt. 05.04.2022 could be recorded. Though, the diary of plaintiff
shows that he has not mentioned date of hearing of present matter( 05.04.2022)
in his diary, it is hard to digest that the plaintiff remained unaware of the dates
of hearing in this technological age, when all the data is available on Website
of ECourts. Also the plaintiff could have enquired about the date of hearing
from the court. This kind of negligence is not acceptable that the person who
files a case against someone, remained slept for more than one year
(05.04.2022 to 02.08.2023) and suddenly wakes up after dismissal of his
application. Further, the applicant has not mentioned in his application as to
when and how he got to know about dismissal of his application.
5. It is further pertinent to note that careful scrutiny of diary shows that
plaintiff has been appearing in CS No. 1419/2016, 1460/2016, 1461/2016 and
1462/2016 before this court in the year 2022 regularly, in that case the plaintiff
had enough opportunity to inquire about the date of hearing in the present
application.
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6. The present application for restoration of application should have been
filed under Order IX Rule IX CPC, hence is being treated as application under
Order IX Rule IX CPC.
7. In view of above observations, this court is of the considered opinion
that the present application deserves dismissal, as the plaintiff/applicant has
not been able to explain any sufficient reason for non appearance on the date of
hearing when his review petition was dismissed.
Present application stands disposed off, being dismissed. Diary of
applicant/plaintiff be returned to him, after filing certified copy of the same on
record.
File be consigned to Record Room.
(Pooja Jain)
ADJ03(East)
KKD Courts07.06.2024
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