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1. Respondents have been served but no one appears, I have and am proceeding to dispose therefore heard the counsel for the appellant of the appeal. a'

2. The challenge by means of this first appeal is to the impugned order dated 2I.LL.2007 which dismissed the application filed by the appellant/plaintiff under Order 9 Rule 9 of Code of Civil Procedure, 1908 (CPC), and which application was filed for restoration of the suit for recovery of money. Since the impugned order is a short order, I would seek to reproduce the same as'under:- "M-25107 21,.tL.2007 Pr:- Ms. Mishu Rai, Adv. Proxy for Ms. Rajni Chouhan, Adv. Counsel for the applicant/plaintiff. Sh. Sunil Sehgal, Adv. counsel for respondent/defendant. Reply to application U/o 9 Rule 9 CPC filed. Copy supplied. Heard on application. The suit was dismissed in default on 2.3.07. The application under consideration has been moved on 15.5.07. Apparently the same is barred by limitation. The application for restoration was accompanied by application for condonation of delay on the grounds taken in the application for restoration. The grounds taken in the application is that on 19.L[2].06 the counsel for the plaintiff noted next date of hearing as 02.03.07 FAO No.52/O[8] 2011:DHC:12162 lY at the file cover as well as in a diary but due to inadvertence it escaped from being carried forward in the diary. The Counsel for the plaintiff was suffering from cataract and glaucoma for which she was admitted in the Ganga Ram hospital on 16.2.07 and got her right eye operated on 17.2.07. She remained in hospital till 2t.2.07 and she remained on rest till 03.04.07. She maintains the case file not according to date wise but according to serial number put on each file. Thus, the case escaped attention and appearance could not be put on the date of hearing. lt was only on 3.05,07 that she received a call from the plaintiff asking about the process of the case as according to the plaintiff is listed for hearing on 2.5.07. The counsel enquired from court on 4.5.07 and revealed that the suit was dismissed in default on 02.03.07. The application is supported by affidavit of counsel for the plaintiff. The application reveals nothing but negligence on the part of counsel for the plaintiff. When she had noted a correct date bt ttre file cover, there is no reason why the date was not carried forward in the diary. Moreover, it is strange that counsel for the plaintiff does not maintain the files date wise. Otherwise the file would have come on the Proper date' Negligence can never be said to sufficient cause of non appearance. The application is dismissed. File be consigned to record room. (O.P. GUPTA) ADJ/DELHI"

3. I may note that parties do make mistake in conduct of the cases and it is not unknown that Advocates make bonafide mistake in noting wrong date in the diary. In this case, this was a ground which was pleaded on behalf of the appellant, however, the trial Court still refused to restore the suit. tn fact, the counsel was suffering from cataract and glaucoma and was operated upon. In my opinion, therefore, the impugned order is clearly \{ unjust as the non-appearance is for one day and the application has also been filed admittedly within a month of the wrong date noted and which itself was also just after about 60 odd days of the original date being 2.3.2007.

4. Appeal is accordingly allowed. lmpugned order is set aside and suit of the plaintiff is restored to its original number. Trial Court will hear and dispose of the suit in accordance with law. Appellant to appear before the District & Sessions Judge, Tis Hazari Courts, Delhi on 25th August, 2011 and on which date, District & Session Judge will mark the case to an appropriate Court, With the aforesaid observations, appeal is accordingly disposed JULY 15, 2OL[1] Ne \C ^l*,ef'zut:tvALMtKr J. MEHTA, t.

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