HIMA KOHLI, J. (Oral)

1. The plaintiff has filed I.A. No.20367/2011 under Order IX Rule 9 CPC praying inter alia for setting aside the order dated 16.12.2010, whereunder the suit was dismissed in default. Alongwith the present application, the plaintiff has filed I.A. No.20368/2011 for condonation of delay of 357 days in filing an application under Order IX Rule 9 CPC.

2. Learned Senior Advocate appearing for the plaintiff states that in August 2009, the plaintiff had instituted the present suit for recovery of moneys against the defendants through his previous counsel, whereafter summons were issued in the suit and the written statement was filed. As the plaintiff did not file the replication, the right to file the same was closed vide order dated 27.07.2010. In the meantime, the defendants filed an application under Order VII Rule 11 CPC for dismissal of the suit on the ground that it is not maintainable. No reply was filed by the plaintiff to the said application and his right to file the same was closed. Subsequently, the plaintiff had filed an application under Order VI Rule 17 CPC for seeking permission to amend the plaint, registered as I.A. No.12577/2010, whereon notice was issued on 09.12.2010. Till the said date, the plaintiff was being duly represented through counsel. However, on 16.12.2010, when the suit and the pending interim applications were placed before the Court, none had appeared for the plaintiff. As a result, the suit was dismissed in default alongwith the pending application filed by the plaintiff.

3. The explanation offered by the counsel for the plaintiff for condonation of delay is that the plaintiff had engaged a counsel for conducting the suit, with whom he was telephonically in touch and he would also visit his chambers in the Supreme Court Complex, as and when called upon to do so. Subsequently, when the plaintiff had attempted to contact the counsel to find out the status of his case, he claims that his counsel started to evade him and did not inform him of the status of the suit. It was only in November, 2011 that the plaintiff undertook an inspection of the court records and discovered that the suit had been dismissed on 16.12.2010 and immediately upon becoming aware of the said position, the plaintiff had dispatched a letter dated 25.11.2011 to his counsel through registered post. However, his counsel did not respond to the said letter. Thereafter, the plaintiff approached the present counsel to take necessary steps for restoration of the suit and the present applications were then filed for seeking condonation of delay of 357 days in filing the restoration application and for setting aside the order dated 16.12.2010. Counsel for the plaintiff also points out that the plaintiff is a senior citizen and has been keeping indifferent health as he is suffering from bronchitis and being a permanent resident of Faridabad, he was not in a position to attend the hearings in Court on every date, for which he had chose to rely on his counsel.

4. Per contra, counsel for the defendants opposes the present applications on the ground that the explanation offered by the plaintiff for condonation of delay and restoration of the suit is not bonafide. He submits that even if it is assumed that the plaintiff was following up the matter with his counsel for a period of time, he has no plausible explanation to offer for not contacting his advocate for almost one year prior to the dismissal of the suit on 16.12.2010 and that lack of diligence on his part is writ large on the record. It is further stated by the counsel for the defendants that the dismissal of the present suit due to the default on the part of the plaintiff has resulted in a valuable right accruing in favour of the defendants and failure on the part of the plaintiff to furnish a reasonable justification for explaining a prolonged delay of 357 days in filing the restoration application ought to be a sufficient reason to dismiss the present ap