M/s. R.J. Taxtab Ltd. vs Urmila Sharma and Others

Rajan Gupta, J.—Present revision petition is directed against the order dated 28.4.2011, passed by the court below, whereby application U/O 9 Rule 4 CPC filed by the petitioner to restore the suit has been dismissed. Learned counsel for the petitioner has assailed the order. According to him, approach of the trial court is wholly erroneous. It has dismissed the application for restoration without appreciating the pleas of the petitioner.

I have heard learned counsel for the petitioner and given careful thought to the facts of the case.

Petitioner filed a civil suit for declaration to the effect that sale deed dated 3.7.2007 between defendant No. 1 and defendant No. 4 and another sale deed of the same date between plaintiff No. 2 and defendant No. 5 were null and void. He also sought mandatory injunction to direct the defendants to accept the balance amount and to execute the sale deed. Case was fixed before the court for 24.4.2009. It was adjourned to 12.5.2009, on which date the suit was dismissed. Counsel for petitioner claimed that he had noted a wrong date i.e. 2.7.2009. Instant application was moved for restoration of suit. Prayer has been rejected by the court below observing that application could be filed within 30 days of dismissal of the suit. Besides, plaintiff had not moved any application for condonation of delay in filing the application. Trial court also found that counsel could not have noted 2nd July, 2009 as next date of hearing, it being well known that during that period court is closed due to summer vacation and civil cases are not taken up. In support of application, neither affidavit of plaintiff nor counsel was filed. No proof was produced before the court to support averments made in the application. Trial court, thus, rejected the prayer for restoration of the suit. I find no legal infirmity with the order. Revision petition is without any merit. Dismissed.