Full Text
HIGH COURT OF DELHI
JUDGMENT
NARENDER SINGH BISHT ..... Appellant
For the Appellant: Mr Kuldeep Rana, Advocate (through VC).
For the Respondent: None.
HON'BLE MR. JUSTICE VIKAS MAHAJAN
1. For the reasons stated in the application, the application is allowed and the delay in filing the appeal is condoned.
2. Appellant impugns order dated 02.09.2022 rejecting application of the appellant under order IX rule 9, C.P.C seeking restoration of the petition that had been dismissed on 04.05.2022.
3. Learned counsel for the appellant submits that the counsel had instructed his associates to appear in the matter on 04.05.2022, however, on the way to Court, the associate met with an accident and suffered injuries and accordingly, could not reach court on time.
4. Order dated 04.05.2022, records that notice sent to the appellant had been returned unserved and the counsel who was earlier representing had stated before the Court that he had returned the brief. The Court, thereafter, waited for the appellant and dismissed the matter for non-appearance of the appellant/petitioner.
5. We notice that the application under order IX rule 9 was filed on 17.05.2022 i.e. within 13 days of dismissal in default, stating that the counsel's associate had met with an accident.
6. By the impugned order the family court has taken a hypertechnical view in rejecting the application on the ground that medical documents of the associate has not been filed.
7. In view of the fact that the court notices sent to the appellant on 04.05.2022 had returned unserved, the family court should not have, dismissed the petition in default. Rather the Court should have directed issuance of fresh notice on the appellant. Be that as it may, since the non-appearance has been duly explained i.e on account of the accident of the associate, the rejection of the application under order IX order 9 C.P.C was not warranted.
8. We also notice from the order sheet placed on record that the respondent has not been served in the petition that was filed before the Family Court. Accordingly, we have taken up this appeal and are disposing of the same ex-parte.
9. In view of the facts noticed here in above, the impugned order dated 04.05.2022 dismissing the petition in default and the order dated 02.09.2022 rejecting the application under order IX rule 9 C.P.C are set aside. The petition is restored on the records of the Family Court.
10. The petition shall be listed before the Family Court for directions on 15.02.2023.
11. Order dasti under the signatures of Court Master.
SANJEEV SACHDEVA, J. VIKAS MAHAJAN, J. JANUARY 11, 2023