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Resurrgent Construction Pvt. Ltd. & Anr vs Strum Buildcon Pvt. Ltd. & Anr

Delhi High Court · Decided on 9 April 2025 · Citation: (2025) 04 DEL CK 0978

HON’BLE JUDGES
Manoj Jain, J
ACTS & SECTIONS REFERRED
Code of Civil Procedure, 1908 — Section 141, 151, Order 7 Rule 10, Order 9 Rule 7
RESULT
Disposed Of
CASE NUMBER
Civil Miscellaneous Petition No. 565 Of 2025 & Civil Miscellaneous Application No. 17618-17621 Of 2025
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Judgment

13 paragraphs · 384 words

Manoj Jain, J

CM APPL. 17619-17620/2025 (exemption)

Exemption allowed, subject to all just exceptions.

CM(M) 565/2025 & CM APPL. 17618/2025 & CM APPL. 17621/2025

1.

None appears on behalf of the respondent despite advance notice.

2.

The grievance of the petitioner is very short and precise.

3.

Petitioner is defending a suit for recovery.

4.

During pendency of the aforesaid suit, it was proceeded against ex parte and its one application moved under Order VII Rule 10 CPC was also dismissed.

5.

Petitioner/defendant moved separate applications before the learned Trial Court. By virtue of first application, he sought setting aside of ex parte order, for which the relief has been granted to him by the learned Trial Court. However, with respect to the second application, whereby he was seeking restoration of its application moved under Order VII Rule 10 CPC, such request has been turned down for the reasons that such request cannot be entertained by moving an application under Order IX Rule 7 CPC.

6.

Learned counsel for the petitioner does admit that application had been moved under the wrong provision. He submits that earlier when the application moved under Order VII Rule 10 CPC was taken up by the learned Trial Court on 06.07.2022, there was no appearance from either of the sides and, the learned Trial Court, while noticing the conduct of the defendant, dismissed the aforesaid application. Such dismissal is not on merits and rather it’s a default-dismissal and, therefore, the petitioner should have moved application under appropriate provisions, seeking restoration of his application.

7.

Be that as it may, the Court can always, whenever so required, correct and guide any such litigant and can still consider any such application, even if it mentions a wrong provision of law. For all practical purposes, the aforesaid application was seeking restoration of its previous application moved under Order VII Rule 10 CPC which had, ostensibly, dismissed in default and non-prosecution.

8.

Therefore, the present petition is disposed of by requesting the learned Trial Court to consider the aforesaid application as the one moved under Order IX CPC r/w Section 151 & 141 CPC and, after hearing both the sides, to decide the same in accordance with law.

9.

Petition, along with all the pending applications, stands disposed of in the aforesaid terms.