Order On Board

08/10/2024

1. This Miscellaneous Appeal has been filed against the order dated

28.06.2023 passed by District Judge, Rajnandgaon in Civil MJC No.7/2022 whereby, application preferred by the appellant under Order 9 Rule 9 CPC for restoration of suit was dismissed.

2. Facts of the case in brief are that, in the year 2017, appellant instituted a suit for declaration and for specific performance of contract. On the date of hearing i.e. 04.12.2021, the case was fixed for plaintiff’s evidence. It has been averred that when the appellant’s lawyer was busy in preparing the affidavit in the form of Order 18 Rule 4 CPC as the same was notarized on the same day and a copy of which has also been filed along with this appeal, therefore for such reasons, he could not make his appearance at the time of hearing before the court and the case was dismissed for non prosecution. When the application in question was filed on 07.1.2022 for restoration, the same was also dismissed by the order impugned.

3. Learned counsel for the appellant submits that in a catena of decisions of the Hon’ble Supreme Court, the law is well settled that the restoration of suit dismissed on default should not ordin