Neeraj Pangotra vs Harish Verma

Surjit Singh, Judge

Heard and gone through the record.

Petitioner, who has filed a suit for recovery Rs. 1,10,000/- against the respondent, assails the order dated 12.8.2011 of learned trial Court whereby his application for restoration of suit, which had been dismissed in default, stands dismissed, by means of present petition under Article 227 of the Constitution of India.

A perusal of the impugned order shows that the suit was dismissed in default on 31.3.2010. An application was moved for restoration of that suit, which was listed for hearing on 13.5.2010, but on account of non-appearance of the petitioner that application was dismissed. Thereafter, an application for restoring the said application (for restoration of main suit) was moved and that too was dismissed in default on 16.4.2011. After that another application was moved for restoring the application for restoration of first application, under Order 9 Rule 9 CPC. That application has been dismissed vide impugned order, on the ground that repeated dismissal of the main suit and the applications for restoration, in default of appearance of the petitioner, indicate that he is not interested in pursuing the suit. The order shows that respondent-defendant did not appear despite service of notice to oppose petitioner''s prayer for restoration of the said application.

Mere fact that suit and then application for restoration of the suit and also the application for restoration of the said application (for restoration of main suit) had been dismissed in default, by itself could not have been a ground for not restoring the application for restoration of the suit, which had been dismissed in default.

Trial Court''s reasoning is based on conjecture that petitioner did not appear to be interested in pursuing the matter. When the suit is for recovery of a sum of Rs. 1,10,000/- and the petitioner has paid substantial amount of money by way of court fee ( Rs. 3650/-), as is made out from the record of the suit, no presumption could have been drawn, without there being any material on record that petitioner was not interested in pursuing the matter.

In view of the above stated position, impugned order is set aside. Application for restoring the application for restoration of earlier application, under Order 9 Rule 9 CPC, which was dismissed in default on 16.5.2011, is allowed and the said application is restored to file. Petition stands disposed of. Record of trial Court be returned alongwith a copy of this order. Parties are directed to appear before trial Court on 11.1.2012.