The main legal point established is that the dismissal of a suit in default due to the negligence of the counsel may be a sufficient cause for restoration, especially when the case is at the stage of final arguments.

V.B. Gupta, J.

.1. Present appeal has been filed against order dated 3rd July, 2006 passed by Additional District Judge, Delhi, dismissing the appellants application under Order .IX Rule 9 of Code of Civil Procedure (for short as ‘Code’).

2. Appellants filed a suit in this Court bearing (old number 487/75) on its original side jurisdiction in year 1975. Vide order dated 17th January, 1985, that suit was clubbed with another (Suit No. 235/66).

3. (Suit No. 487/75) was treated as main suit. Common evidence was recorded in these two suits, after they were clubbed together. After conclusion of trial, both matters came at the stage of final arguments in year 1994.

4. Due to the change of pecuniary jurisdiction in year 2003, (Suit No. 487/75) was transferred to District Courts, whereas, (Suit No. 235/66) remained in this Court.

5. In (Suit No. 487/75), Additional District Judge, ordered for issuance of court notice to the appellant and his counsel, but despite service of court notice, no one turned up from the side of appellant and accordingly, this suit was dismissed in default on 8th March, 2004.

6. On 9th March, 2004, an application under Order IX Rule 9 of the Code, was filed. That application was contested by defendants.

7. In between, Mukhinder singh (plaintiff No. 1 in the suit), before trial court, died. An application under Order 22 Rule 3 of the Code was filed for substitution of his LRs.

8. Meanwhile, one Preet Mohinder Singh intervened and moved an application for becoming a party in the suit. Due to these reasons, restoration application could not be disposed off.

9. When continuously for four dates, no one appeared from the side of the appellants, then restoration application under Order IX Rule 9 of the Code, was also dismissed in default and for want of prosecution, on 1st March, 2006.

10. Thereafter, another application for setting aside order dated 1st March, 2006, was filed on 29th March, 2006.

11. Vide impugned order, both these applications were dismissed.

12. No reply to the applications was filed on behalf of respondents. However, oral arguments have been advanced by learned Counsel for both the parties.

13. It is contended by learned Counsel for appellants that the suit had been pending for the last about thirty years and the appellant/plaintiff have been diligent throughout these years in pursuing the matter. In fact, appellants had no notice or knowledge of the court dates. Moreover, lawyers being on strike, appellants were therefore not being represented by their advocate.

14. It is also contended that the entire evidence in the matter had already been recorded and the suit was to be finally argued, when the same was dismissed in default for the first time, due to negligence of counsel for the appellants.

15. It is further contended that the suit was transferred due to change in pecuniary jurisdiction on 19th November, 2003 and same was listed again on 14th January, 2004, when presiding officer was on leave. Thereafter, it was listed on 8th March, 2004, when, due to non appearance of counsel as well as appellants, it was dismissed for non-prosecution. Application for restoration was filed on very next date.

16. Another contention made by learned Counsel for appellants is that, when suit was received upon transfer on 19th November, 2003, no court notice was issued to plaintiff Nos. 2 to 5 (the appellants). Notice was issued only to plaintiff No. 1, who at that time was in the hospital and thereafter, died on 20th May, 2004. Therefore, neither plaintiff No. 1 nor other appellants/plaintiffs were aware of the said dates.

17. The present case has been dismissed only due to fault of advocate of the appellants and not due to negligence of appellants. Appellants had been diligent in pursuing their case for last thirty years and suit has been dismissed only due to the lack of communication and negligence on the part of counsel for appellants.

18. On the other hand, it has been contended by learned Counse