IMPORTANT POINT
The court emphasized the necessity of considering valid reasons for a party's non-appearance in court proceedings, reinforcing the principle of justice.

ORDER :

(Rekha Borana, J.)

1. The present revision petition has been preferred against the order dated 30.03.2016 passed by the Additional District Judge, Sumerpur in Civil Misc. Case No.07/2016 whereby the application under Order 9 Rule 4 read with Section 151, CPC as preferred on behalf of the petitioner plaintiff has been dismissed.

2. The facts are that the suit for recovery was filed by the plaintiff which was dismissed in default and in non-prosecution on 30.11.2013. An application under Order 9 Rule 4 read with Section 151, CPC was filed by the plaintiff on 24.02.2014 with the submission that on 30.11.2013 when the matter was posted for plaintiff evidence, he was on election duty in the MLA elections and hence, could not present himself before the Court. It was therefore prayed that the order dated 30.11.2013 be set aside.

3. The learned Trial Court while rejecting the application as preferred on behalf of the plaintiff observed that the plaintiff filed his affidavit of examination-in-chief after 10 opportunities been given and then despite 14 opportunities been granted for cross-examination did not present himself before the Court. The Court further observed that even the application under Order 9 Rule 4, CPC was filed after a delay of three months.

4. Learned counsel for the petitioner submits that the observation as made by the learned Trial Court is totally erroneous as no 14 opportunities were granted to the plaintiff to remain present for cross-examination as after the affidavit of examination-in-chief been filed by him, there were two applications filed which were decided on 25.05.2013 and 26.10.2013 respectively. After that, it was only on the first date i.e. 30.11.2013 when the matter was again fixed for cross-examination of the plaintiff. On that date, he was on election duty and hence, the reason assigned by him for his non-appearance on 30.11.2013 was a valid and justified one.

5. Per contra, learned counsel for the respondents submits that the application was rightly rejected as there was no document placed on record to show that the plaintiff had prayed for relaxation from his election duty, he being required to appear for cross-examination before the Court. Meaning thereby, he intentionally did not appear for cross-examination and therefore, his application has rightly been rejected.

6. Heard the counsels and perused the record as well as the order impugned.

7. Order 9 Rule 4, CPC provides as under:

“4. Plaintiff may bring fresh suit or Court may restore suit to file.—Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for[such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.”

8. A bare perusal of the above provision makes it clear that if any order of dismissal is passed in terms of Order 9 Rule 2 or Rule 3, CPC, the plaintiff is entitled to apply for an order to set aside the said dismissal and for the same, he is required to satisfy the Court that there was a sufficient cause for his non-appearance on the date when he was required to appear.

9. It is evident on record that the plaintiff was on election duty on the date fixed for cross-examination i.e. 30.11.2013. In support of the said fact, the order of his election duty was placed on record by the plaintiff but the learned Trial Court declined to consider the same on the premise that the plaintiff did not place on record any document to show that he moved any application to the Election Officer for relaxation in the election duty. The Court observed that on 30.11.2013, there was no application moved on behalf of the plaintiff to inform the Court about his election duty. Therefore, the non-appearance of the plaintiff on the said