Vinoba Vihar, Malviya Nagar, Jaipur v. Virendra Khatri S/o

3. Akshita D/o Late Shri Virendra Khatri (All R/o 4 Ta 15, Jawahar Nagar, Jaipur). ----Respondents For Appellant(s) : Mr. J.P. Goyal, Senior Advocate assisted by Ms. Sakshi Tiwari For Respondent(s) : Mr. M.M. Ranjan, Senior Advocte assisted by Mr. Yashwardhan Tolani HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 07/05/2025 Order

1. Instant Civil Misc. Appeal is preferred by appellant-plaintiff aggrieved from dismissal of application under Order IX Rule 9 CPC on 24.01.2013 in civil Misc. case No. 34/2012 passed by learned Additional District Judge No. 14, Jaipur Metro, Jaipur.

2. Learned Senior Advocate while relying upon grounds of misc. appeal submitted that after settlement of issues, the civil suit was fixed for evidence of plaintiff and due to some unavoidable situation, the evidence of plaintiff was not recorded on date fixed for hearing. He further submitted that the Trial Court has granted [2025:RJ-JP:23104] (2 of 5) [CMA-1528/2013] some time after imposing cost upon the plaintiff and on

21.10.2011, when the plaintiff has to proceed for Jodhpur then suddenly he was informed to remain present on very same day. He further submitted that in his absence, his counsel has pleaded no instruction and it resulted into dismissal of civil suit. He also submitted that the conduct of plaintiff is bona fide and he assures to participate and comply his part to record evidence without any delay, and requested that the case be restored to original number.

3. Aforesaid contentions were opposed by learned Senior Advocate on behalf of respondent-defendant and he submitted that there was a deliberate delay by plaintiff, which is evident from the proceedings of the Trial Court. He also submitted that after several opportunities, the plaintiff has failed to examine himself, and the Trial Court has dismissed the civil suit. He also submitted that afterwards an application under Order IX Rule 9 was filed and no specific or sufficient ground is mentioned for restoration of civil suit, thus in absence of sufficient cause, the Trial Court has rightly dismissed the application.

4. Heard learned Senior Advocates for the parties and perused the material placed on record.

5. Appellant-plaintiff Neeraj Sharma has filed a civil suit No. 95/2009 for specific performance and permanent injunction. After completion of pleadings, the issues were framed and matter was fixed for evidence of plaintiff but despite time granted to plaintiff, the plaintiff has not examined any evidence. At last on

19.09.2011, the matter was adjourned at a cost of ₹2000/- and date was fixed as 21.10.2011. On 21.10.2011, the counsel for plaintiff has pleaded no instruction, which resulted in dismissal of [2025:RJ-JP:23104] (3 of 5) [CMA-1528/2013] suit. Thereafter, an application under Order IX Rule 9 read with Section 151 CPC is filed and same was dismissed on 24.01.2013. Hence this appeal.

6. A perusal of facts narrated in order dated 21.10.2013 clearly indicate that after settling the issues after three opportunities were granted for evidence and fourth on cost, thereafter the evidence of plaintiff was closed on 23.05.2011. Thereafter, on application of plaintiff one more opportunity was granted for evidence of plaintiff. Despite this, the evidence was not produced on 19.09.2011 and 21.10.2011. Ultimately, the counsel for plaintiff pleaded no instruction. It is an admitted fact that the plaintiff was called by his counsel on 21.10.2011 and thereafter he pleaded no instruction. Learned Senior Advocate appearing for respondent reiterated that on 19.09.2011, the appellant-plaintiff was present before the Trial Court and he deliberately avoided to examine himself. The grounds were not contradicted by appellant- plaintiff.

7. Order IX Rule 9 CPC provides for restoration of suit, dismissed for default when the applicant-plaintiff able to demonstrate the sufficient cause for non-appearance when the suit was called for hearing. The plaintiff was afforded sufficient opportunity before closing his evidence on 23.05.2011. It is also evident from order sheet dated 21.10.2011 that the counsel remained absent but the Trial Court has called him and afterwards he pleaded no instruction. If appellant-plaintiff was not able to attend the Court proceedings on 21.10.2011, then advance application can be filed on last working day prior to 21.10.2011 but same is not filed. Moreover, on 21.10.2011, an application for [2025:RJ-JP:23104] (4 of 5) [CMA-1528/2013] adjournment can be filed by the counsel but no such efforts were made.

8. It is a settled law that unless a sufficient ground cause is shown, an application for restoration of a suit cannot be allowed. We agree upto the extent that the Court has to remain little liberal while considering the grounds but looking to the present case, a liberal approach cannot be adopted to grant one more opportunity to appellant-plaintiff to lead evidence before the Trial Court. Herein, the plaintiff has not filed any document to show his urgency on 21.10.2011.

9. A very recently in case of H. Guruswamy & Ors. Vs. A. Krishnaiah Since Deceased by LRs (Civil Appeal no. 317/2025) reported as 2025 INSC 53 Hon’ble Supreme Court has considered three basic words normally considered by the Courts for allowing condonation of delay and same are “liberal approach”, “justice oriented approach” and “substantial justice” and observed that these terms should not be employed to frustrate or jettison the substantial law of limitation. Further, the Bench observed that rule of limitation are based on principles of sound public policy and principles of equity. No Court, should keep the ‘Sword of Damocles’ hanging over the head of a litigant for an indefinite period of time.

10. The appellant-plaintiff has failed to show sufficient cause to restore civil suit dismissed in default, therefore, the appeal sans merits and liable to be dismissed.

11. In view of discussions made herein above, the instant S.B. Civil Miscellaneous Appeal No. 1528/2013 is hereby dismissed with pending application(s), if any. [2025:RJ-JP:23104] (5 of 5) [CMA-1528/2013]

12. No order as to costs. MONU /68-S (ASHOK KUMAR JAIN),J

3. Akshita D/o Late Shri Virendra Khatri (All R/o 4 Ta 15, Jawahar Nagar, Jaipur). ----Respondents For Appellant(s) : Mr. J.P. Goyal, Senior Advocate assisted by Ms. Sakshi Tiwari For Respondent(s) : Mr. M.M. Ranjan, Senior Advocte assisted by Mr. Yashwardhan Tolani HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 07/05/2025 Order

1. Instant Civil Misc. Appeal is preferred by appellant-plaintiff aggrieved from dismissal of application under Order IX Rule 9 CPC on 24.01.2013 in civil Misc. case No. 34/2012 passed by learned Additional District Judge No. 14, Jaipur Metro, Jaipur.

2. Learned Senior Advocate while relying upon grounds of misc. appeal submitted that after settlement of issues, the civil suit was fixed for evidence of plaintiff and due to some unavoidable situation, the evidence of plaintiff was not recorded on date fixed for hearing. He further submitted that the Trial Court has granted [2025:RJ-JP:23104] (2 of 5) [CMA-1528/2013] some time after imposing cost upon the plaintiff and on

21.10.2011, when the plaintiff has to proceed for Jodhpur then suddenly he was informed to remain present on very same day. He further submitted that in his absence, his counsel has pleaded no instruction and it resulted into dismissal of civil suit. He also submitted that the conduct of plaintiff is bona fide and he assures to participate and comply his part to record evidence without any delay, and requested that the case be restored to original number.

3. Aforesaid contentions were opposed by learned Senior Advocate on behalf of respondent-defendant and he submitted that there was a deliberate delay by plaintiff, which is evident from the proceedings of the Trial Court. He also submitted that after several opportunities, the plaintiff has failed to examine himself, and the Trial Court has dismissed the civil suit. He also submitted that afterwards an application under Order IX Rule 9 was filed and no specific or sufficient ground is mentioned for restoration of civil suit, thus in absence of sufficient cause, the Trial Court has rightly dismissed the application.

4. Heard learned Senior Advocates for the parties and perused the material placed on record.

5. Appellant-plaintiff Neeraj Sharma has filed a civil suit No. 95/2009 for specific performance and permanent injunction. After completion of pleadings, the issues were framed and matter was fixed for evidence of plaintiff but despite time granted to plaintiff, the plaintiff has not examined any evidence. At last on

19.09.2011, the matter was adjourned at a cost of ₹2000/- and date was fixed as 21.10.2011. On 21.10.2011, the counsel for plaintiff has pleaded no instruction, which resulted in dismissal of [2025:RJ-JP:23104] (3 of 5) [CMA-1528/2013] suit. Thereafter, an application under Order IX Rule 9 read with Section 151 CPC is filed and same was dismissed on 24.01.2013. Hence this appeal.

6. A perusal of facts narrated in order dated 21.10.2013 clearly indicate that after settling the issues after three opportunities were granted for evidence and fourth on cost, thereafter the evidence of plaintiff was closed on 23.05.2011. Thereafter, on application of plaintiff one more opportunity was granted for evidence of plaintiff. Despite this, the evidence was not produced on 19.09.2011 and 21.10.2011. Ultimately, the counsel for plaintiff pleaded no instruction. It is an admitted fact that the plaintiff was called by his counsel on 21.10.2011 and thereafter he pleaded no instruction. Learned Senior Advocate appearing for respondent reiterated that on 19.09.2011, the appellant-plaintiff was present before the Trial Court and he deliberately avoided to examine himself. The grounds were not contradicted by appellant- plaintiff.

7. Order IX Rule 9 CPC provides for restoration of suit, dismissed for default when the applicant-plaintiff able to demonstrate the sufficient cause for non-appearance when the suit was called for hearing. The plaintiff was afforded sufficient opportunity before closing his evidence on 23.05.2011. It is also evident from order sheet dated 21.10.2011 that the counsel remained absent but the Trial Court has called him and afterwards he pleaded no instruction. If appellant-plaintiff was not able to attend the Court proceedings on 21.10.2011, then advance application can be filed on last working day prior to 21.10.2011 but same is not filed. Moreover, on 21.10.2011, an application for [2025:RJ-JP:23104] (4 of 5) [CMA-1528/2013] adjournment can be filed by the counsel but no such efforts were made.

8. It is a settled law that unless a sufficient ground cause is shown, an application for restoration of a suit cannot be allowed. We agree upto the extent that the Court has to remain little liberal while considering the grounds but looking to the present case, a liberal approach cannot be adopted to grant one more opportunity to appellant-plaintiff to lead evidence before the Trial Court. Herein, the plaintiff has not filed any document to show his urgency on 21.10.2011.

9. A very recently in case of H. Guruswamy & Ors. Vs. A. Krishnaiah Since Deceased by LRs (Civil Appeal no. 317/2025) reported as 2025 INSC 53 Hon’ble Supreme Court has considered three basic words normally considered by the Courts for allowing condonation of delay and same are “liberal approach”, “justice oriented approach” and “substantial justice” and observed that these terms should not be employed to frustrate or jettison the substantial law of limitation. Further, the Bench observed that rule of limitation are based on principles of sound public policy and principles of equity. No Court, should keep the ‘Sword of Damocles’ hanging over the head of a litigant for an indefinite period of time.

10. The appellant-plaintiff has failed to show sufficient cause to restore civil suit dismissed in default, therefore, the appeal sans merits and liable to be dismissed.

11. In view of discussions made herein above, the instant S.B. Civil Miscellaneous Appeal No. 1528/2013 is hereby dismissed with pending application(s), if any. [2025:RJ-JP:23104] (5 of 5) [CMA-1528/2013]

12. No order as to costs. MONU /68-S (ASHOK KUMAR JAIN),J