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2014 Supreme(P&H) 1746
IN THE HIGH COURT OF PUNJAB AND HARYANA
Rakesh Kumar Jain, J.
Sumati Sagar Jain – Appellant
Versus
Balbir Singh and Others – Respondents
Civil Revision No. 7844 of 2014
Decided On : 16-12-2014
For the Appellant : H.C. Arora.
Compliance with procedural requirements and providing sufficient cause for non-appearance are crucial when seeking to set aside dismissal orders.
Headnote:
Order 9 Rule 4 - Setting Aside Dismissal Order - The court dismissed the suit under Order 9 Rules 2 and 8 of the CPC due to the plaintiff's failure to pay process fee and non-appearance at the hearing. The petitioners filed applications under Order 9 Rule 4 for setting aside the dismissal orders, but the court found no sufficient cause for non-appearance and negligence in pursuing the suit, leading to the dismissal of the revision petition.
Fact of the Case:
The predecessor-in-interest of the petitioners filed a suit for declaration and permanent injunction. The suit was dismissed under Order 9 Rules 2 and 8 of the CPC due to the plaintiff's failure to pay process fee and non-appearance at the hearing. Subsequent applications under Order 9 Rule 4 were also dismissed.
Finding of the Court:
The court found that the petitioners were negligent in pursuing the suit and failed to provide sufficient cause for non-appearance, leading to the dismissal of the revision petition.
Issues: Failure to pay process fee, non-appearance at the hearing, applications under Order 9 Rule 4 for setting aside dismissal orders.
Ratio Decidendi: The court emphasized the importance of complying with procedural requirements and providing sufficient cause for non-appearance when seeking to set aside dismissal orders.
Final Decision: The revision petition was dismissed for lack of merit.
Rakesh Kumar Jain, J.
1. Sumati Sagar Jain, predecessor-in-interest of the petitioners, filed a suit for declaration that the power of attorney dated 30.10.1987 and the sale deeds dated 19.10.2007 and 16.11.1987, registered on the basis of the said power of attorney, are illegal, null and void and also prayed for the consequential relief of permanent injunction to restrain the defendants from alienating the suit land in any manner. On 06.05.2009, the suit was dismissed under Order 9 Rules 2 and 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC"). The exact order passed by the Court below is as under:-
"Present: None for the plaintiffs).
Counsel for defendants No. 3 and 4.
LR No. II of defendant No. 2 ex-parte.
Case called several times during the day at different intervals. But none has come present on behalf of the plaintiffs. Even plaintiffs have not filed correct address for service of remaining defendants. Therefore, the instant suit is ordered to be dismissed u/o 9 rule 2 & 8 CPC. File be consigned to record room.
Pronounced:
6.5.2009
Sd/-
(Kuldip Singh)
Addl. Civil Judge, Senior Division,
Samana."
Thereafter, predecessor-in-interest of the petitioners, filed an application under Order 9 Rule 4 of the CPC for setting aside the aforesaid order dated 06.05.2009. However, the said application was also dismissed on 30.08.2010 in the following manner:-
"Present: None.
*****
Case called several times during the day at different intervals. But none has come present on behalf of both the parties. Therefore, the instant case is ordered to be dismissed in default. File be consigned to record room.
Pronounced:
30.08.2010
Sd/-
(Kuldip Singh)
Addl. Civil Judge, Senior Division,
Samana."
2. Thereafter, predecessor-in-interest of the petitioners filed another application under Order 9 Rule 4 of the CPC for setting aside the order dated 30.08.2010 and for restoration of the earlier application filed under Order 9 Rule 4 of the CPC but the said application was dismissed vide order dated 16.07.2014 which has been challenged by the petitioners in the present revision petition.
3. Counsel for the petitioners has also filed an application bearing CM No. 27927-CII of 2014 seeking permission to place on record the accompanying affidavit of Ila Jain (now Ila Bansal) wife of Sandeep Bansal.
4. The said application is allowed and the affidavit of Ila Jain is taken on record.
5. Counsel for the petitioners has argued that since the advocate appearing on their behalf was suffering from jaundice and typhoid, therefore, he could not appear in the Court on 30.08.2010. It is submitted that the advocate Shri Sunil Gupta has refused to file his affidavit and thus the affidavit of Ila Jain has been filed. It is submitted by him that if the impugned order is not set aside, they would not be able to pursue the suit and thus requested that the impugned order may be set aside, subject to payment of costs.
6. I have heard learned counsel for the petitioners and examined the available record with his able assistance.
7. On 06.05.2009, the suit of the petitioners was dismissed by the Court under Order 9 Rules 2 and 8 of the CPC. Order 9 Rule 2 of the CPC was invoked by the Court because of the failure on the part of the plaintiff to pay the process fee or postal charges due to which the summons could not be served upon the defendants and Order 9 Rule 8 was invoked because the plaintiff did not appear when the case was called for hearing. Predecessor-in- interest of the petitioners, however, filed the application only under Order 9 Rule 4 of the CPC which provides that where the suit is dismissed under Order 9 Rules 2 and 3 of the CPC, the plaintiff may apply for setting aside the order of dismissal but here not only the suit was dismissed under Order 9 Rule 2 of the CPC but also under Order 9 Rule 8 of the CPC for which the application should have been filed by the petitioners under Order 9 Rule 9 of the CPC as well.
8. In any case, the petitioners' appli
