Bina Marry David vs Lilli Dayal

U.C. Maheshwari, J.

Heard on the question of admission.

The petitioner/applicant/plaintiff has filed this writ petition under Article 227 of the Constitution of India for issuing appropriate writ in the nature of Certiorari for quashment of the order dated 21.3.2012, (Ann. P-2) passed by the Ist Additional District Judge, Khurai in Miscellaneous Appeal No. 05/11 affirming the order dated 25.3.2011 passed by IIIrd Civil Judge, Class-II, Khurai in MJC No. 4/10 dismissing her application filed under Order 9 Rule 9 of the CPC for restoration of Civil Original Suit No. 70-A/09, which was dismissed for want of prosecution on account of non appearance of herself as well as of her counsel, vide order dated 24.6.2010. The petitioner''s counsel after taking me through the averments of the petition as well as papers placed on record including the aforesaid order of the trial court dismissing the application under Order 9 Rule 9 of the CPC as well as impugned order of the appellate court dated 21.3.2012 (Ann. P-2) argued that on the date of dismissal of the Original Suit No. 70-A/09 without any pre-intimation to the petitioner her counsel did not appear in the court and for want of any information regarding such date, the petitioner could not appear. Consequently the suit was dismissed. On which by stating sufficient cause/reasons regarding aforesaid her non appearance in the original suit, the application under Order 9 Rule 9 of the CPC for restoration of the suit was filed on her behalf in the trial court. The same was dismissed without examining the merits of such application. On filing the appeal without examining the merits of the matter, the same was dismissed by the appellate court. In continuation he said that in any case by invoking the mercy jurisdiction of this court for extending the opportunity of hearing to the petitioner on merits in the original suit by admitting and allowing this petition, the original suit be directed to be restored to its original number with appropriate direction to decide the same on merits with some time bound schedule.

Keeping in view the aforesaid arguments, I have carefully gone through petition as well as aforesaid papers placed on record alongwith the impugned order of the appellate court. In para 8 of the appellate court''s order, Annexure P-2, it is specifically stated that the civil original suit was pending for ten years before the trial court and during that period the plaintiff-petitioner did not appear on a single date. It is further stated that even on filing the impugned application under Order 9, Rule 9 of the CPC to restore the suit, in order to prove the stated facts of application regarding sufficient cause to restore the suit neither the petitioner, herself nor any other witness appeared in the witness box for recording their deposition.

It is settled proposition of law that party who pleads the facts before the Court, then such party is bound to prove such fact by adducing the evidence as per prescribed procedure under the law. It is apparent fact in the case at hand that in order to prove the alleged factum of sufficient cause as pleaded in the application under Order 9 Rule 9 of CPC, none has appeared in the witness box. In the lack of such evidence on record merely on the basis of pleadings in the application under Order 9 Rule 9 of CPC the relief as prayed in the application would not have been granted by the trial court. In such premises, the trial court has not committed any error in dismissing the petitioner''s application as well as on filing the appeal the appellate court has also not committed any error in dismissing the appeal by affirming the order of the trial court. My aforesaid view is fully fortified by the earlier decision of this court in the matter of Gulla Kharagjit Carpenter Vs. Nar Singh Nandkishore Rawat, , in which it was held as under:-

When a material fact is within the knowledge of a party and he does not go into the witness box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness box particularly when a prima facie case has been made out against him. Placitum

In view of the aforesaid, I have not found any merits in this petition even for admission of this petition. Consequently, the same is hereby dismissed.