Interim Order 16

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: IN THE COURT OF DR. PANKAJ SHARMA
DISTRICT JUDGE-02 & WAQF TRIBUNAL
PATIALA HOUSE COURTS : NEW DELHI
DLND010096452022
Misc DJ No. 564/2022
(in CS No. 618/2019)
IN THE MATTER OF :
Uday Chand …. Applicant/plaintiff
VERSUS
Preeti Chaudhary & Ors. …..Non-applicants/Defendants
06.10.2026
ORDER
1. Vide this order, I shall dispose of the application filed by the
applicant under Order IX Rule 4 Code of Civil Procedure, 1908 (in short
‘CPC’)
seeking recall/set aside the order dated 01.09.2022 and restore the suit to its
original position.
2. The applicant/plaintiff filed the above captioned suit for partition,
permanent injunction and for rendition of accounts. It is
interalia stated in the
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application that vide order dated 01.09.2022, the Court dismissed the suit of the
plaintiff as dismissed in default, on account of that the plaintiff’s counsel did
not appear or the plaintiff, despite being given ample opportunity. It is
submitted that the plaintiff’s counsel did not appear before the court, nor he
informed the plaintiff about the court hearing.
2.1 It is submitted that the plaintiff is a poor person, who has a spine
problem, and the doctor advised him complete bed rest. The order dated
01.09.2022 passed by this Court for dismissed in default is very harsh for the
plaintiff, and the plaintiff has to bear the huge financial loss due to dismiss his
suit. It is submitted that the above mentioned reasons are neither intentional nor
deliberate.
3. In reply to the instant application, respondent no. 1 stated that vide
Order dated 01.09.2022 passed by this Court, the original Suit of the Plaintiff
was dismissed in default when Plaintiff had stopped appearing in his Suit from
last many hearings and more so only after giving adequate opportunity to the
Plaintiff to appear by issuance of Court Notice vide Order dated 11.04.2022. It
was only when Plaintiff had chosen not to appear even after the service of
Court Notice upon his Counsel, then this Court was constrained to dismiss the
Suit in default on 01.09.2022.
3.1 It is submitted that the Plaintiff had filed the Suit on 16.08.2019
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and the Plaintiff’s Counsel had appeared from time to time, therefore, it could
not be ascertained that Plaintiff was not privy to the status of his case, as it was
dismissed only on 01.09.2022 that too after consecutive non-appearances on
behalf of Plaintiff.
3.2 It is submitted that the Plaintiff had not shown any genuine cause
or given any reasonable explanation as to what prevented him from appearing
before this Court in last many hearings. The only reason given by the Plaintiff
in his Application is that the Plaintiff’s Counsel did not appear nor inform the
Plaintiff about the court hearing. However, the fact remains that this is not the
case where Plaintiff or his Counsel had not appeared on one date and this Court
had dismissed the Suit on the very next date, this is a case where neither the
Plaintiff nor his Counsel had appeared on many consecutive dates of hearings
and this Court had dismissed the Suit on 01.09.2022 only after issuance of
Court Notice to the Plaintiff on 11.04.2022, thereby providing time period of
more than four and half months to the Plaintiff to appear. Therefore, it cannot
be ascertained that due to allege default on part of Counsel, Plaintiff was not
able to appear before this Court, and the non-appearance of the Plaintiff before
this Court was willful and deliberate.
3.3 It is submitted that Plaintiff in his Application had leveled
allegations against his previous Counsel that his previous Counsel had not
informed him about court hearing, without adducing any supporting
documentary evidence, which shows efforts of the Plaintiff, which he had made
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to know the status and date of hearing of his Suit from his previous Counsel.
Not only this, if the Plaintiff was so aggrieved by the professional misconduct
on part of his previous counsel, he should have taken appropriate steps against
him, but the fact remains that Plaintiff just wants to shift his onus to his
previous counsel, by leveling these kind of allegations without any material
evidence in support of it.
3.4 It is submitted that the Plaintiff had taken a ground in his
application that the Plaintiff is a poor person who has a spine problem and
doctor has advised him complete bed rest. However, from perusal of medical
documents, which are filed by the Plaintiff along with the application, it could
not be ascertained that Plaintiff is bed ridden, as out of two documents one
document is of Covid RTPCR treatment. Moreover, the medical documents
annexed by the Plaintiff pertains to month of July 2023 only, however, the Suit
was dismissed in default on 01.09.2022, since the Plaintiff neither appeared on
11.04.2022 nor on previous dates.
3.5 It is submitted that in the present case, Respondent/Defendant
No.1 had been duly appearing before this Court in the original Suit and the
same was dismissed in default by this Court under Order IX Rule 8 of CPC
only on account of non-appearance on part of Plaintiff. Therefore, the present
application was supposed to be filed by the Plaintiff under Order IX Rule 9 of
the CPC, however, the Plaintiff had chosen to file his Application under wrong
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provision of Order IX Rule 4 of the CPC, under which the present Application
is anyways not maintainable and is liable to be dismissed out rightly being
barred by law and devoid of merits.
3.6 It is submitted that Nonetheless, Plaintiff had no prima facie case
in his favour and the present Suit was filed just to pressurize, harass and extort
money from the Defendant No. 1, who is a widow of Plaintiff’s deceased
brother. Therefore, the present Application of the Plaintiff may be dismissed
with costs as the Plaintiff had failed to show sufficient cause for his non-
appearance on the date of dismissal and even on previous consecutive dates.
4. Respondent no. 3, 4 & 5 have appeared and submit that they have
no objection, if the present application of plaintiff for restoration of suit is
allowed.
5. I have heard both the counsels and have gone through the record
carefully.
6. So far as the plea on behalf of the respondent no. 1 that the
application has not been filed under correct provision is concerned, the said
plea is technical in nature and it is settled proposition of law that substantial
justice overweigh the technicalities. From the bare perusal of the application, it
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is forthcoming that the appropriate provision is Order IX Rule 9 CPC and the
application is considered under the said provision. To succeed the
applicant/plaintiff under the said provision for seeking restoration of the plaint,
the applicant is required to satisfied the court that there was sufficient cause for
his non-appearance when the suit was called on for hearing. The
applicant/plaintiff has averred that he is a poor person having spine problem
and he was advised bed rest. Further, his Ld. Counsel did not make appearance
before the court and could not apprise him of the status of his case. As per the
record, after the outbreak of Corona while the matters were adjourned en-bloc
to 04.12.2021, no appearance has been made on behalf of plaintiff till
01.09.2022 when the suit was dismissed. Apparently, during the said period, the
Court proceedings were disrupted due to Covid-19 and as such, the non-
appearance on behalf of plaintiff and his Ld. Counsel has to be considered in a
pragmatic manner. Therefore, the plaintiff has been able to make out a
sufficient cause for his non-appearance. Accordingly, considering the justice
oriented approach and the sufficient cause shown by the plaintiff, the
application is allowed. The suit is restored to its original number.
Announced in open court
today i.e. 06.10.2026
(Dr. Pankaj Sharma)
DJ-02 & Waqf Tribunal
New Delhi District
Patiala House Courts,
New Delhi.
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