Order 10

Order Details: COPY OF ORDER
Pdf Text: CS 174/22
BRAHM PRAKASH (SENIOR CITIZEN) Vs. NITIN GUPTA
06.02.2025
Present: Plaintiff with counsel Sh Atul Tanwar
Sh Rajesh Yadav counsel for the defendants no. 1 &
2 through VC
Defendant no. 2 in person
Case is fixed today for framing of issues. The
defendant no. 2 has filed an application under Order 9 r/w 151
CPC for restoration of the application under Order 7 Rule 11
CPC on 30.01.2025. Copy supplied. Arguments on the
application heard.
In the application, it is contended by the defendant
no. 2 that his application under Order 7 Rule 11 CPC was
dismissed in default on 23.09.2024. The reason assigned in the
application is that the counsel had appeared through VC but
since his camera could not be switched on, his presence was not
marked by the court. Further the counsel of defendant was
suffering from high grade fever and on next date i.e. on
24.09.2024 he got admitted in hospital at Bahadurgah Haryana
where he remained hospitalized upto 28.09.24. Hence, it is
prayed that application under Order Rule 7 Rule 11 CPC may be
restored.
The counsel of the plaintiff has strongly opposed the
application. He submitted that application is not maintainable.
Application has been filed belatedly. The application under Order
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7 Rule 11 CPC was dismissed for repeated non appearance of the
defendants. The defendants are just delaying the proceedings of
the case. He has prayed for dismissal of the application seeking
restoration of the application under Order 7 Rule 11 CPC.
Perusal of the record shows that present is a suit for
recovery of Rs. 8,32,701/- filed by the plaintiff against the
defendants. The defendants filed the written statement and also
filed the separate applications under Order 7 Rule 11 CPC. The
matter was also referred to the Mediation Center on 01.06.2023.
On 07.11.2023 it was reported that matter could not be settled,
therefore the court listed the matter for reply and arguments on
the application under Order 7 Rule 11 CPC for 14.02.2024. On
07.11.2023 none had appeared for the defendants. Again on
14.02.2024 none appeared for the defendants. The matter was
adjourned to 23.09.2024. On the said date again, none appeared
for the defendants and therefore, the applications under Order 7
Rule11 CPC moved by the defendants were dismissed in default
and case was fixed for framing of issues.
Now the present application has been filed by defendant
no. 2 under Order 9 and Sec. 151 CPC seeking restoration of the
application under Order 7 Rule 11 CPC. I find substance in the
arguments of the counsel of the plaintiff that order 9 CPC would
not be attracted. Further, defendant no. 2 has not shown that
which rule of order 9 CPC will be applicable to the present
application. However, since the application is also u/s 151 CPC
and therefore, same is considered. Of course, the counsel of the
defendants appeared to be hospitalized on 24.09.2024 as per the
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copy of medical documents submitted alongwith the application
and therefore he may not have been able to join the proceedings
on 23.09.2024 as he was suffering from high grade fever.
However, it cannot also be ignored that court had to dismiss the
applications on 23.09.2024 for non appearance of the defendants
for the last two dates prior to 23.09.2024. Therefore, the case of
the plaintiff has been delayed. The application should have been
filed immediately after 23.09.2024 but it has been filed on
30.01.2025. Since the defendant no.2 has filed the application
under Order 7Rule 11 CPC seeking rejection of plaint and in
order to decide said application on merits, one opportunity is
granted to defendant no.2 to argue on said application. However,
for causing delay in the matter, the defendants are burdened with
cost of Rs. 2000/- each payable to the plaintiff.
Though the present application has been filed by
defendant no.2 only but since the counsel of the defendants is
common, therefore in order to cutshort the further delay, at the
request of the counsel of the defendants the application moved by
defendant no.1 under Order 7 Rule 11 CPC is also restored.
The case is now fixed for payment of cost and
arguments on the applications under Order 7 Rule 11 CPC moved
by the defendants for 19.04.2025. No further adjournment shall
be given to the defendants to argue the said applications.
(Balwant Rai Bansal)
District Judge -05, NDD,
PHC/ND/06.02.2025
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