Shanti Bhaskar vs Savitri Devi - 1995 Supreme(MP) 1253

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : Ashok Lajwani
For the Non-applicant : Hemant Kumar

Headnote:(1) Practice (Civil) – all applications but one endorsed by Court – such application cannot be treated to have been filed on the date.
       (2) Civil Procedure Code, 1908 – O.9 R.9 – application for restoration of suit – highly belated – not supported by application for condonation of delay – liable to be rejected.
        Short Note
       This revision is directed against the order dated 18.7.94 passed by the R.C.A. Bhopal, in case No. 62/RCA/91 allowing the application filed under Order 9 Rule 9 CPC setting aside the dismissal of the case for default. The non – applicant moved an application under section 23(a) of the M.P. Accommodation Control Act, 1961 for eviction of the applicant from the suit accommodation on the ground of bona fide need. On 21.7.93 the case was dismissed for default for non – appearance of the counsel for the non – applicant. The non – applicant claims to have filed an application on 26.7.93 under Order 9 Rule 9 CPC and the application was allowed by the RCA by the impugned order restoring the case to its original number.
       2. Shri Ashok Lalwani counsel for the applicant has contended that as a matter of fact the application filed under Order 9 Rule 9 CPC on 14.12.93 and not on 26.7.93. There is nothing to show in the order sheet of the lower Court that any application under Order 9 Rule 9 CPC be filed by the non – applicant on 26.7.93 whereas the order sheet dated 14.12.93 indicates that application under Order 9 Rule 9 CPC was filed by the counsel for the non – applicant on that date. The application was hopelessly time barred and there was no application for condoning the delay in filing the application.
       3. Shri Hemant Kumar counsel for the non – applicant on the other hand has contended that he himself filed an application under Order 9 Rule 9 CPC before the RCA on 26.7.93.
       4. The contention of Shri Hemant Kumar cannot be accepted in absence of the corresponding order sheet on the record of the case. It appears that the petition filed by the non – applicant for restoration of the case does not bear any seal of the Court, where as all the application filed before the RCA bears the seal of the Court.
       5. In view of the order sheet dated 14.12.93 the contention of Shri Hemant Kumar that he had filed an application under Order 9 Rule 9 CPC on 26.7.93 cannot be accepted. The RCA has restored the case sk1ting that the application for restoration of the case was filed on 26.7.93 which is not supported by the order sheet of the RCA. The impugned order is, therefore, not in accordance with law. Therefore, it cannot be sustained. Accordingly it is set aside, and the result the petition succeeds and is allowed.