The court upheld the trial court's decision to dismiss a restoration application due to lack of diligence and failure to show bona fide reasons for delayed filing.

JUDGMENT :

Narendra Singh Dhaddha, J.

1.This Civil Writ Petition has been filed by the petitioner against the order dated 28.07.2022 passed by Additional District & Sessions Judge No.6, Jaipur Metropolitan-II, Jaipur in Restoration Application No.10/2022 (CIS No.83/2022), whereby the restoration application filed by the petitioner for restoration of application under Order 9 Rule 13 CPC has been dismissed.

2. Learned counsel for the petitioner submits that respondent No.1 filed a suit for possession, mesne profit and permanent injunction against the petitioner. That was decreed ex-parte on another suit against the petitioner and respondent No.1 was pending before Family Court in which respondent No.1 appeared on 05.03.2009 & 08.05.2009 and submitted that he is not in a good health and in relation to the disputed House No.D-9, Adarsh Basti, Tonk Road, Jaipur and he was not going to evict the petitioner from the property. That contention was recorded in the order-sheet of the Family Court proceedings.

3. Learned counsel for the petitioner also submits that on account of said contention, petitioner could not attend the execution proceedings because she was under the impression that the said suit would be withdrawn by respondent No.1. She knew about the judgment dated 30.10.2012 in the year 2013. So, she filed an application before the trial court under Order 9 Rule 13 CPC on 18.02.2013 in which respondent No.1 filed reply. Respondent No.1 who is father of the petitioner was expired on 29.05.2018. Family members of the petitioner as well as respondent No.1 met the petitioner during the course of all the proceedings. So, she did not attend the proceedings pending under Order 9 Rule 13 CPC. That was dismissed on account of her non-appearance on 06.12.2018.

4. Learned counsel for the petitioner also submits that respondent No.2 filed execution petition on account of registered gift deed dated 10.01.2011 executed in his favour by the respondent No.1. Petitioner again filed an application under Order 9 Rule 13 CPC that was dismissed on 27.10.2021 being not maintainable.

5. Learned counsel for the petitioner also submits that petitioner had no other remedy except to file an application for restoration of the application under Order 9 Rule 13 CPC by recalling the order dated 06.12.2018 but trial court vide order dated 28.07.2022 wrongly dismissed the application filed by the petitioner.

6. Learned counsel for the petitioner also submits that petitioner had bona-fide reason because on account of the statement given by respondent No.1 before the Family Court and death of respondent No.1, petitioner could not attend the trial court. So, order dated 28.07.2022 and the order dated 06.12.2018 by which application was dismissed on account of non- appearance of the petitioner be set aside and petitioner be allowed to continue the proceeding under Order 9 Rule 13 CPC.

7. Learned senior counsel for the respondent No.2 has opposed the arguments advanced by learned counsel for the petitioner and submits that petitioner had wrongly filed the present writ petition. Petitioner had to file the appeal against the impugned order. Learned senior counsel for the respondent No.2 also submits that first application filed by the petitioner under Order 9 Rule 13 CPC was dismissed on 06.12.2018 and she had filed restoration application on 16.02.2022 i.e. after a lapse of more than 3 years. No bona-fide cause was shown by her for filing restoration application belatedly. On account of filing application at belated stage, so, the trial court rightly dismissed the application filed by the petitioner. So, present petition being devoid of merit, is liable to be dism