1985 Supreme(MP) 200

K. M. Agarwal, J.
Girija Devi v. J. B. Mangharam & Co.
C. R. No. 157 of 1980 (G): Decided on 25-3-1985.

Headnote:Civil P. C., 1908 -- O. 9. R. 7 -- sufficient cause -- requires liberal construction --affidavit not rebutted -- should be believed.

        This is plaintiffs revision against rejection of her application under section 151 CPC for restoration of her application under Order 9, Rule 7 CPC, which was dismissed in the default of appearance on 19-4-1979.

        According to the applicant, she had made appearance in the Court on 19-4-1979, but the record of the case was not traceable on that day. Consequently, a separate order-sheet was recorded and the case was adjourned to 17-9-1979. On this adjourned date, she learnt that her restoration application was dismissed in default of appearance on 19-4-1979 and, therefore, on 18-9-1979, she made an application under section 151 CPC for restoration of the restoration application supported by affidavit. By its impugned order, the Court below has rejected the application on the ground that the applicants contentions were not supported by the record of the case. She had not paid the process fee and had made false statement that the case was adjourned to such a long date as 17-9-1979 by opening a separate order sheet. In short, the Court below came to the conclusion that no sufficient cause for non-appearance on 19-4-1979 was shown by the applicant and accordingly dismissed the application.

        After hearing the learned counsel for the applicant, I am of the view that this revision must be allowed. It is to be seen that there is no material on record to rebut the affidavit tiled by the applicant to support of her application. The default in payment of process fee should not have been considered as a circumstance to show non-existence of sufficient cause for non-appearance on 19-4-1979. It appears that long dates were given in the past as well and, therefore, there was no justification for disbelieving the applicant that in the absence of record, the case was adjourned to 17-9-79 by opening a separate order-sheet on 19-4-1979. Similarly, without any basis, the applicant would not have made an averment that in the absence of record, a separate order-sheet was opened on 19-4-1979. She would have invented any other cause for non-appearance or for the delay in moving the restoration application, if she so desired. Looking to what happens in Courts in the absence of record, the possibility cannot be ruled out that a separate order-sheet might have been opened on 19-4-1979 as alleged by the applicant and after the record was traced, it might have slipped the attention of the clerk to attach the alleged order-sheet with the record of the case. Under the circumstances, I find that sufficient cause for non-appearance on 19-4-1979 was made out by the applicant and, therefore, the Court below was wrong in rejecting the applicants application under section 151 CPC.

        It may also be observed that the law requires liberal construction of the phrase "sufficient cause" and unless the Court finds the party in default to be grossly negligent or the cause shown for non-appearance to be palpably false, a party should not be non-suited or penalised to forego his or her claim in to-to. Revision allowed.