CRP No.162/2009

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HIGH COURT OF DELHI : NEW DELHI

CRP No. 162/2009

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Judgment reserved on: 29^th July, 2010

Judgment delivered on: 2^nd August, 2010

Sh. Sheo Raj,

S/o Sh. Shri Narain,

R/o Vill. & P. O. Gokalpur,

Near Shiv Mandir,

Shahdara,

Delhi-110094

….Petitioner

Through:

Mr. I. J. S. Mehra, Adv.

Versus

1. Sh. Hans Raj,

Sh. Ari Singh,

Prop. of M/s Plastic Industry,

Vill. & P.O. Gokalpur,

Shahdara,

Delhi-110094

2. Sh. Chander Pal

S/o Sh. Ari Singh,

Prop. of Plythene Bags Factory,

Vill. & P.O. Gokalpur,

Shahdara,

Delhi-110094

….Respondents

Through:

Mr. P.D. Gupta with Mr. R. K.

Gupta, Adv.

2010:DHC:3778

CRP No.162/2009

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Coram:

HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may

be allowed to see the judgment?

Yes

2. To be referred to Reporter or not?

Yes

3. Whether the judgment should be reported

in the Digest?

Yes

V.B.Gupta, J.

Present revision petition has been filed under Section 115 of Code of

Civil Procedure (for short as „Code‟) challenging judgment dated 29^th

October, 2009 passed by Additional District Judge, Delhi and orders dated

24^th April, 2009, 5^th May, 2009 and 20^th May, 2009, passed by Civil Judge,

Delhi.

2. Petitioner herein, filed a suit for recovery against respondent in the

year 1993.

3. On 25^th April, 2009 that suit was dismissed in default due to non-

appearance of the petitioner and his counsel.

4. Thereafter, petitioner filed an application under Order 9 Rule 9 of the

Code for setting aside order dated 25^th April, 2009. That application was

also dismissed in default on 5^th May, 2009. Again petitioner filed an

application under Section 151 of the Code for setting aside order dated 5^th

May, 2009. This application was dismissed by the trial court, vide

impugned order dated 20^th May, 2009.

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5. Petitioner filed an appeal against order dated 25^th April, 2009 of the

trial court.

6. First appellate court, vide impugned order dated 29^th October, 2009,

dismissed the appeal.

7. It is contended by learned counsel for petitioner that non appearance

of the petitioner and his counsel on 25^th April, 2009 and 5^th May, 2009 was

bonafide and was not willful or deliberate. Petitioner was assured by his

counsel that he would represent him in his absence on 25^th April, 2009. As

such petitioner could not appear on that date.

8. It is further contented that counsel for petitioner was held up in other

case and could not appear on 25^th April, 2009 and 5^th May, 2009. Counsel

also submitted his case diary with details of cases listed for 25^th April, 2009,

in different courts. Since non appearance of the petitioner and his counsel

on 25^th April, 2009 and 5^th May, 2009, was bonafide, so there was sufficient

ground for allowing this petition.

9. On the other hand, it is contended by learned counsel for respondents

that suit was filed by the petitioner in the year1993. It is the petitioner who

himself is getting the trial delayed. After dismissal of the suit, petitioner

filed application for restoration which was again dismissed in default due to

non appearance of petitioner and his counsel. So, there is no sufficient

ground for restoration. This shows that petitioner is quite negligent and

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CRP No.162/2009

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careless in pursuing its case. There is no ambiguity or illegality in the

impugned orders passed by the trial court.

10. Petitioner has not placed on record copies of application filed under

Order 9 Rule 9 of the Code, as well as application