Rashmi Srivastava & Anr. v. M/S Lotus Greens Constructions Pvt Ltd and Ors

1. Allowed, subject to all just exceptions.

2. Application is disposed of. FAO 100/2025 & CM APPL. 21926/2025

3. This application is moved on behalf of the applicants/appellants seeking condonation of delay of 670 days in filing the present appeal against the impugned order dated 02.05.2023 and the review of the said order, which was also dismissed by the learned Trial Court vide order dated 18.09.2024.

4. At the outset, no reasons have been assigned by the applicants/ appellants as to why the appeal against the order passed in the review application dated 18.09.2024 has been filed beyond the period of 90 days as prescribed in the law. Be that as it may, even if the period, which was exhausted for preferring the application for review of the order dated 02.05.2023 vide order dated 18.09.2024, is excluded in terms of Section 14 of the Limitation Act on merits too the present appeal is bereft of any substance.

5. In short, the applicants/appellants assail the impugned order dated 02.05.2023 whereby the learned Trial Court dismissed the application, under Order IX Rule 9 of the Code of Civil Procedure, 1908 [“CPC”], of the applicants/appellants for restoration of the suit for recovery filed by them, which was dismissed in default of their non-appearance on 07.07.2022.

6. The main plank of the submissions which was advanced in the application under Order IX Rule 9 of the CPC moved on 18.10.2022 was that the date of hearing was wrongly noted as 17.09.2022 instead of 07.07.2022 and in addition, the father of the appellant’s advocate had died on 17.06.2022 and the uthala rasm/bhog was fixed for 29.06.2022 but there was death of another member in the family viz. their aunt (chachi) for which the bhog ceremony was rescheduled for 09.07.2022. It was claimed that though they contacted the counsel on 16.09.2022 but there was no response, and later on, they came to know that the suit had been dismissed in default of their appearance and their counsel on 07.07.2022.

7. It would be apposite to reproduce the reasons that prevailed in the mind of the learned Trial Court while dismissing the application under Order IX Rule 9 of the CPC, which read as under:

shows the non serious attitude of the plaintiff, second being, the documents appended with the application are not admissible and cannot be relied upon in the absence of Certificate under Section 65B of the Indian Evidence Act, third being that the submission of wrong noting of date is a flimsy and frivolous ground, which is evident from the fact that on previous dates i.e. 06.08.2021, 12.11. 2021, 16.02.2022, 06.04.2022 and 07.07.2022 also, neither the plaintiff nor her counsel appeared.

12. In regard to the aforesaid first objection of the present application being barred by limitation, I concur with the same as the order vide which the suit was dismissed is dated 07.07.2022, whereas the application came to be filed on 18.10.2022. Article 122 of Schedule l of Limitation Act provides the period of limitation to be 30 days for the restoration of the suit from the date of dismissal. Even if we factor in the submission that a wrong noting of date was made, be it 07.09.2022 or 17.09.2022, still the application having been filed on 18.10.2022, is clearly time barred. The present application being not underpinned by any application for condonation of delay deserves to be rejected.

13. Furthermore, the submission of wrong noting of date, being 07.09.2022 or 17.09.2022, is not supported by any material in the form of any diary noting. It is a convenient ground which is routinely raised after a litigant is meted with any adverse order. But the Courts have to exercise caution and guard against any such frivolous plea, without there being any tenable justification. This plea of wrong noting of date further stands debunked from the conduct of the plaintiff as on 06.04.2022 also, none had showed up on her behalf. The unfortunate demise of father of previous counsel for the plaintiff and his aunt and further rescheduling of his uthala/rasam bhog for 09.07.2022 can be considered as a sufficient cause for non-appearance on 07.07.2022, but on other aspects noted herein above and the fact that the present application is hopelessly barred by limitation in the absence of any application for condonation of delay, the same stands dismissed. The Judgment relied upon by Ld. Counsel for applicants are fact-centric and clearly distinguishable from the facts discussed herein.”

8. A bare perusal of the aforesaid reasons would go to suggest that the applicants/appellants were not diligently pursuing their remedy in law. The application under Order IX Rule 9 of the CPC was filed beyond the prescribed period of limitation. No justifiable reasons were advanced. There appears to be no illegality, perversity or incorrect approach adopted by the learned Trial Court in dismissing the application. Accordingly, the present application as well as the appeal are dismissed.

9. The pending application bearing CM APPL. 21924/2025 also stands disposed of.

10. A copy of this order be sent to the learned Trial Court for information and records.

DHARMESH SHARMA, J. APRIL 16, 2025