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Judgment
Manmohan, J
I.A. 15801/2018
Present application has been filed under Section 151 of Code of Civil Procedure allegedly for restoration of the present suit on the ground as if it
had been dismissed on account of non-prosecution on 12th October, 2018.
Learned counsel for plaintiff-applicant states that on the first call the main counsel was on his legs in another Court and at the pass over stage, the
main arguing counsel was engaged in final arguments of another case and therefore, unfortunately, the matter was dismissed for non-prosecution. He
also states that petitioner is a poor person who appears through legal aid and therefore, the case be restored to its original number.
A perusal of the paper book reveals that the consistent conduct of the plaintiff has been to either press for stay of sale of suit property by the bank,
who is a secured creditor, or to obtain adjournments.
This Court had in fact dismissed the present suit on account of non-prosecution on 11th May, 2018 and not on 12th October, 2018 as mentioned in
the present application.
The dismissal order was passed as the plaintiff had refused to argue the case on three consecutive dates. The orders dated 29th November, 2017,
16th April, 2018 and 11th May, 2018 are reproduced hereinbelow:-
A. Order dated 29th November, 2017
“Mrs. Krishna, wife of the plaintiff, prays for an adjournment on the ground that her counsel Mr. R.S. Rathi, Advocate, is out of station.
In the interest of justice, adjourned to 16th April, 2018.â€
B. Order dated 16th April, 2018
“Today also, Ms. Krishna, wife of the plaintiff prays for an adjournment on the ground that her counsel Mr. R.S. Rathi is unavailable. Reluctantly,
the matter is adjourned to 11th May, 2018.
It is made clear that no adjournment will be granted on the next date of hearing.â€
C. Order dated 11th May, 2018
“Today also the plaintiff prays for an adjournment. On the last date of hearing, it was made clear that no adjournment would be granted today.
Accordingly, the prayer for adjournment is declined.
He, however, states that he is not willing to argue the case.
Consequently, the present suit and pending applications are dismissed on account of non-prosecution.â€
On 12th October, 2018, I.A. 8605/2018 under Order IX Rule 4 CPC for restoration of the suit was dismissed on account of non-prosecution. In
fact, the said application was listed for the first time on 06th July, 2018 when this Court drew the attention of the legal aid counsel to the previous
conduct of the plaintiff. On 06th July, 2018, counsel for legal aid had taken time to study the file.
It seems to this Court that the plaintiff wants to keep the suit pending only to prevent the secured creditorâ€"Bank from exercising its rights against
the suit property. With this intent the plaintiff does not mind the suit being dismissed in default as his purpose is secured by keeping an application for
restoration and/or some other application pending.
Keeping in view the conduct of the plaintiff, the present application for restoration of restoration application, is dismissed.