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Jitender Kumar Garg vs Smt. Leelawati and Others

Delhi High Court · Decided on 7 December 2009 · Citation: (2009) 12 DEL CK 0207

HON’BLE JUDGES
S.N. Dhingra, J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Order 9 Rule 4
RESULT
Dismissed
CASE NUMBER
I.A. No. 3544 of 2009 in C.S. (OS) No. 432 of 2001
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Judgment

16 paragraphs · 356 words

Shiv Narayan Dhingra, J.—This application has been made under Order IX Rule 4 CPC by the plaintiff for recalling order dated 2nd

March, 2009 whereby the suit of the plaintiff was dismissed in default for non-appearance. It is stated by the plaintiff that plaintiff could not appear

before the Court as he was suffering from acute gastro enteritis and severe dehydration and was unable to stand and walk. The plaintiff had

engaged a Counsel who inadvertently noted wrong date of hearing and could not appear before the Court. The effort of the plaintiff to contact his

Counsel did not succeed.

2.

It would be seen that plaintiff had not been appearing in this case quote often and had been adopting the dilatory tactics. A cost of Rs. 15,000/-

was imposed on the plaintiff by this Court on 25.3.2008 and this cost was also not paid by the plaintiff. He did not appear on 1.9.2008 and on

5.11.2008. Vide order dated 2.12.2008 last opportunity was given to the plaintiff for payment of cost and to file his list of witnesses and affidavits

by way of evidence and it was clarified to him that no further time shall be granted. No witness of the plaintiff appeared nor any affidavit of

evidence was filed on record on 2nd February, 2009. Thereafter, when the matter was taken up on 2nd March, 2009, the plaintiff again did not

appear and his suit was dismissed in default.

3.

The medical certificate filed by plaintiff is for a disease of gastro enteritis. No treatment record has been filed by the plaintiff as to since when he

was taking treatment. The medical certificate issued by the doctor specifically mentions at the bottom that the certificate was not for medico-legal

purpose. It is obvious that the certificate procured by plaintiff was just to take an excuse of non appearance. Looking into the conduct of the

plaintiff, throughout of not prosecuting the suit and just delaying the matter, I find the excuse taken by the plaintiff was false and no ground is there

to allow the application. The application is dismissed. The suit shall remain dismissed.