Law: Civil Procedure Code (V of 1908)

Section: 9,151

(a) Civil Procedure Code (V of 1908)--- ----O.IX, R.9, S.151---Suit, restoration of---Suit for declaration, mandatory and permanent injunction was dismissed for non-prosecution at the stage of evidence---Petitioners filed application for restoration of the suit which was concurrently dismissed---Petitioners contended that Courts below did not apply judicious mind while passing impugned judgement/decree and order for dismissing suit for non-prosecution; that valuable rights of petitioners were involved; and that petitioners were ready to pay reasonable cost for restoration of suit---Held, that suit was fixed for evidence of plaintiff on the date when the same was dismissed for non-prosecution----Issues were framed on 08/05/2010 and dismissal order was passed on 19/08/2010---Both parties were absent on the date of such dismissal---Only juniors of counsel for the parties were present---Counsel for petitioners produced certified true copy of case diary dated 19/08/2010 which reflected that the counsel was busy before Additional District Judge where arguments were partly heard---Suit was dismissed for non-prosecution only after three months of framing of issues---No warning was issued to the applicants that in case of non-production of evidence penal action would be taken---Suits could be restored in cases where there was sufficient cause for personal non-appearance of party even though counsel for party was negligent in appearance---Petitioners claimed that their witnesses were present outside the court and were waiting for their counsel---Valuable rights of petitioners were involved in the case---Revision petition was allowed and suit was restored to its original position subject to the costs. (b) Civil Procedure Code (V of 1908)--- ----O.IX, R.9---Restoration of suit---Sufficient cause---General policy of law was to adjudicate on merits and dismissal in default should serve as an exception---Litigant must not be denied the justice by Court unless there be insuparable legal hurdles in its way to dispense justice---In matter of restoration, generous consideration should weigh with the court and every possible attempt should be made to allow the parties opportunity…

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