Sufficiency of cause for non-appearance as per Order 9 Rule 3 and Rule 4 of CPC.

ORDER

This miscellaneous appeal under Order 43 Rule 1(c) of the CPC has been filed feeling aggrieved by the order dated 16.12.2021 in MJC No.202/2019 by Signature Not Verified Signed by: HIMANSHU Principal District Judge, Bhopal whereby an application preferred under Order 9 Rule 9 r/w Section 151 of CPC has been rejected.

2 . The facts in brief are that a regular civil suit preferred by appellant/plaintiff was pending before District Judge, Bhopal as Civil Suit no.197-A/2008 titled as Messers Sukhdev Prasad Goyenka vs. State of M.P. and others. Suit was dismissed on 20.07.2018 when the Regular Civil Suit no.197-A/2008 was called for hearing.

3. Challenging the order, this appeal has been preferred on the ground that impugned order is passed ignoring his explanation for non-appearance on 20.07.2018 as he was under treatment from 05.06.2018 to 28.08.2018 for Hypertension with Diabetes with Myalgia and for mistake on the part of counsel, the parties should not suffer.

4. Heard finally at the stage of admission with the consent of both the parties.

5. Learned counsel for the non-applicants/defendants/respondents opposed the prayer and supported the order of Trial Court.

6. Perused the record of the Regular Civil Suit no.197-A/2008.

7 . Order sheet dated 19.11.2016 discloses that one review petition no.743/2016 was filed on behalf of appellant/plaintiff and the matter was continuously pending for the production of order to know the progress in the review petition before M.P. High Court, Jabalpur and on 22.11.2017, it was submitted by both the counsel that review petition no.743/2016 has been disposed of but they could not get the certified copies and sought time to file the certified copy of the order. On further dates also, both the parties were directed to submit the certified copy of the order in review petition no.743/2016 Signature Not Verified Signed by: HIMANSHU and lastly on 09.07.2018, both the parties were directed that the copy of the order should be filed and the matter was posted for 28.07.2018. On the date of 28.07.2018, neither parties appeared before the Court and the suit was dismissed in the absence of both the parties.

8. An application under Order 9 Rule 9 of CPC was preferred before the Trial Court on the ground that due to ill-health applicant/appellant/plaintiff was not in touch with his counsel as he was residing in Katni and counsel noted incorrect date in the case so he also could not appear in the matter. In March, 2019 when appellant/applicant came to Bhopal and tried to get the status of the suit then he came to know that the suit has been dismissed then he applied for certified copy and filed an application. Appellant/plaintiff also filed a certificate issued by Dr. S.K. Sharma medical specialist of District Hospital Katni dated

28.08.2018 as Ex.P-1 alongwith his affidavit.

9. As per Order 9 Rule 3 of CPC where neither party appears when the suit is called for hearing the Court may make an order that the suit be dismissed and whereas his suit is dismissed under Order 9 Rule 3 of CPC, the plaintiff may (subject to law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for non-appearance, the Court shall make an order setting aside the dismissal and shall appoint a date for proceeding with the suit. In this case also the application ought to have been filed under Order 9 Rule 4 of CPC because on 28.07.2018 neither party appeared before the Court.

10. Another requirement is that material date for deciding 'sufficient cause' for non-appearance by the party is the date on which the suit was dismissed and not his previous negligence or past defaults. It is also required that the case should be fixed for hearing and where the date is fixed not for Signature Not Verified Signed by: HIMANSHU hearing but for some interlocutory matter, it is not a date of hearing.

11. In this matter, both the parties were directed to submi