Dr. Shakeel Ahmad vs Smt. Sabina Khatoon

D.S. Sinha, J.—Heard Sri C.B. Yadav, holding brief of Sri R.H. Zaidi, learned Counsel for the applicant.

In suit No. 107 of 1984, wherein the opposite party and the applicant figure as Plaintiff and Defendant respectively, 4th May, 1987 was fixed for final hearing. The opposite party failed to appear. Consequently, the suit was dismissed in default on 15th September, 1987. The opposite party moved an application under Order IX Rule 9 of the Code of Civil Procedure, 1908, hereinafter called the Code, along with an application u/s 5 of the Indian Limitation Act, 1963, hereinafter called the Act. In the application, the opposite party pleaded that she was a Pardanashin lady and dependent oh her brother for the purposes of Pairavi. Her brother had gone to Kanpur in connection with his business and oh account of his absence the opposite party could not appear on 4th May, 1987. She could not personally instruct her lawyer either. However, she had sent a letter to her counsel which, according to her, did not reach to the counsel. This led to default in appearance and dismissal of the suit. Then curfew was imposed in the city of Meerut on account of deterioration of law and order situation. Thereafter, the brother of opposite party again went outside Meerut in connection with his business and returned on 12th September, 1987. On his return the brother of the applicant got in touch with the lawyer, who informed him that the suit had been dismissed for default in prosecution. On coming to know of this dismissal, she moved an application for restoration of the suit accompanied by an application for condonation of delay, u/s 5 of the Act. She pleaded that the default in appearance was neither deliberate nor wanton. The application of the applicant was opposed by the Defendant-applicant.

Taking into consideration over all picture of the facts and circumstances of the case, the court below has, by means of its order dated 9th December, 1988, impugned in the instant revision, allowed the application of the opposite party under Order X Rule 9 of the Code after condoning delay in moving the said application. The learned Counsel for the applicant contends that the order is bad inasmuch as it does not disclose reasons. The order, no doubt, does not indicate the reasons for allowing the restoration application. But, that is not enough for setting aside the order. As required by Clause (ii) of the second proviso to Section 115 of the Code, as applicable in the State of Uttar Pradesh, it has to be established that there would be a failure of justice, or the aggrieved party shall suffer an irreparable injury if the impugned order is allowed to stand. This Court, having powers co-extensive with the powers of the court below to satisfy itself about the sufficiency of the cause for default in appearance and delay in moving the condonation application, has examined the applications of the opposite party under Order IX Rule ,9 of the Code and u/s 5 of the Act, affidavit filed in support thereof and also the objection filed on behalf of the applicant, and is satisfied that, on the facts and circumstances of the case, the order dismissing the suit for default in appearance imminently deserved to be set aside, and in doing so, the court below did not commit any illegality or material irregularity in exercise of jurisdiction. The impugned order does complete justice and cannot be said to cause any injury to the applicant, muchless irreparable. No interference by this Court is called for.

For what has been said above, this revision fails and is, hereby dismissed summarily. Revision dismissed.