$~33 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 120/2024, CM APPL. 20722/2024 VASUDEV SHARMA .....Appellant Through: Mr. Chanderkant Tyagi, Advocate versus SH. SATPAL SHARMA & ORS. .....Respondents Through: Mr. Jatin Kalra, Mr. Kunal Bawa, Advocates for Respondent No. 5 CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

O R D E R

% 19.02.2026

1. The present appeal has been filed against the order dated 02.03.2024 passed by the learned ADJ-04, North West, Rohini Courts, Delhi, in CS DJ No. 931/2017, whereby the application filed by the appellant/plaintiff under Order IX Rule 9 CPC was dismissed.

By way of the said application, the plaintiff had prayed for setting aside of the earlier order dated 15.12.2022 dismissing the suit in default for non-appearance; however, the Trial Court declined to restore the suit to its original position.

2. Briefly stated, the background facts are that the appellant/plaintiff had filed the underlying suit on 30.10.2017 praying for a decree of declaration, partition, appointment of receiver, possession, and mandatory injunction against the respondents/defendants in respect of the suit property in Kanhaiya Nagar, Delhi. Upon completion of pleadings, issues were framed on 24.04.2019 and the plaintiff was directed to lead evidence. The plaintiff’s evidence affidavit was filed, whereafter proceedings were affected by the Covid-19 pandemic and adjourned on subsequent dates.

3. After the resumption of normal work, on 15.12.2022, the Trial Court recorded in its order that no one was present on behalf of the plaintiff and that, after waiting till 11:20 a.m., the counsels for the defendants could not wait any longer on account of scheduled hearings in other Courts. The matter was thereafter proceeded with under Order XVII CPC and dismissed in default for non-appearance. The subject application under Order IX Rule 9 CPC filed against the said order was ultimately dismissed by the Trial Court vide the impugned order, holding that there was no sufficient ground to justify the non-appearance of the plaintiff.

4. Learned counsel for the appellant/plaintiff, while assailing the impugned order, submits that the suit was dismissed on the first call itself without granting the plaintiff or counsel any further opportunity to appear. It is submitted that the restoration application under Order IX Rule 9 was filed on the very same day as the order dismissing the underlying suit in default, which demonstrates the bona fide intention of the plaintiff to prosecute the suit. He further submits that the explanation furnished in the application clearly stated that the counsel was engaged in other Court proceedings and had attempted to join through video conferencing, while the plaintiff was himself unable to attend due to a medical difficulty, which is supported by an X-ray report dated 09.12.2022.

5. Per contra, learned counsel for the respondent contends that the matter is frivolous and was filed only to harass the defendants. He submits that neither the plaintiff nor any witness was present on the concerned date, and their appearance was awaited until 11:20 a.m., as recorded in the order. He further submits that the restoration application did not disclose any cogent reason for non-appearance and that the X-ray slip cannot be relied upon as an indicator of the plaintiff’s incapacity to attend the court proceedings.

6. The primary issue arising for consideration is whether the plaintiff has shown “sufficient cause” for his non-appearance, so as to warrant restoration of the suit under Order IX Rule 9 CPC.

7. It is pertinent to note in this regard that the order dated 15.12.2022 reflects that on the first date of absence, without granting any further opportunity other than waiting till 11:20 a.m., the suit was dismissed in default under Order XVII CPC.

8. The said order does, however, reflect that the restoration application under Order IX Rule 9 CPC was filed on the very same day as the dismissal of the suit. The relevant portion from