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Amber Woollen Mills Vs. Nominations (India), New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberInterim Application Appeal No. 1337 of 1975 and Suit Appeal No. 344 of 1972
Judge
Reported inILR1976Delhi423
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 9
AppellantAmber Woollen Mills
RespondentNominations (India), New Delhi and ors.
Advocates: L.K. Gaur,; D.C. Ulfat,; Sarup Singh and;
Excerpt:
.....not followed this case appeared on daily board of the learned judge on 21st april, 1975, and the counsel for the plaintiffs having not appeared, it was notified again for 22nd april, 1975. but neither the plaintiffs nor their counsel had any[ advance notice as to when the case would be listed before the court. no actual date notice was sent t the counsel or the party, fixing the case for 21st april, 1975. the posting of the case suddenly before the court on 21st april, 1975 or again renotifying it for 22nd april, 1975 was without any notice, whatsoever, to the counsel or the party. the itself is sufficient cause for restoration of the suit.; a party is supposed to care, if it has notice of the date of hearing. parties or their counsels are not obliged to look the daily list, unless..........from there it is brought on the weekly list and from the weekly list it is brought on the daily list. this procedure on the appellate side is being followed on the basis of the rules framed by the high court which are contained in volume v of the high court rules and orders. no such rules have been framed on the original side and in the absence of rules being framed otherwise, the procedure provided in the code of civil procedure ought to be followed. since, no procedure was followed for fixing the date without notice to the plaintiffs or the defendants counsel, this itself is sufficient cause for the absence of the plaintiffs or their counsel either on 21st april, 1975 or 22nd april, 1975. (6) the result is that the application is accepted and the suit is restored. the suit may now.....
Judgment:

Yogeshwar Dayal, J.

(1) This is an application on behalt of the plaintiffs for setting aside the dismissal of the suit by order dated 22-4-1975, and for restoration of the suit on the file of the Court.

(2) It is stated in the application that after the case was listed before B the Court on 26th March 1975. the case was adjourned to appear in the list for arguments on preliminary issues. It is also stated that the plainlifis' counsel has been going through the weekly and daily lists of this Court and has been watching the case in the said lists. That all of a sudden on 20th April 1975, the counsel for the plaintiffs got a case for Jodhpur High Court and became busy so much so that he could not concentrate on the lists very meticulously. It is further stated that due to oversight the counsel for the plaintiffs skipped over the above case when it appeared on 22-4-1975, and, thereforee, he could not appear on 22-4-1975, and, thereafter, the advocate went to Jodhpur on 23-4-1975 and returned back en 27-4-1975. Mr. K. C. Dewan was kind enough to tell the advocate for the plaintiffs that the suit was dismissed for default on 22-4-1975, and hence the present application.

(3) It is stated that non-appearance on 22-4-1975 was quite unintentional and it was due to the aforesaid bonafide reasons.

(4) The application has been opposed on behalf of defendants Nos. 1, 2 and 3, and defendant No. 4;. who filed separate replies. Apart from taking technical objections that the application is not properly verified and there not being any proper affidavit of the counsel filed in support of the application, it was stated that there is no sufficient cause for the non-appearance of the counsel on the date fixed. It was also slated on behalf of defendants Nos. 1, 2 and 3 that the case appeared on daily list on 21-4-1975 and the counsel for the defendants remained in the Court throughout, but neither the plaintiffs nor their counsel appeared on that day, and the case was again listed on the next date, i.e., on 22-4-1975, but none, on behalf of the plaintiffs, appeared on that date, and, ultimately, the suit was dismissed in default.

(5) The suit was fixed for 26th March, 1975 before Kapur, J., when the learned Judge framed the issues and directed that the first six issues 'could be treated as preliminary issues and the case may be listed for decision on these preliminary issues in the category of 'others'. The case, after having been placed in the category of 'others', it appears that no periodical, or weekly, or monthly lists of 'others' were issued by the Registry. No practice directions have been issued as to how the case should be listed after having been put in the category of A 'others'. Under the Code of Civil Procedure a definite date has to be fixed when a matter is adjourned for a particular purpose. This procedure was not followed. The case appeared on daily board of the learned Judge on 21st April, 1975, and the counsel for the plaintiffs having not appeared, it was notified again for 22nd April 1975. What has to be noticed is that neither the plaintiffs nor their counsel had any advance notice as to when the case would be listed before the Court No actual date notice was sent to the counsel or the party, fixing the case for 21st April, 1975. The posting of the case suddenly before the Court on 21st April, 1975 or again renotifying it for 22nd April 1975 was without any notice, whatsoever, to the counsel or the party. This itself is sufficient cause for restoration of the suit, irrespective of the grounds mentioned in the application about the counsel being busy or not having seen the daily list for 21st or 22nd April, 1975. A party is supposed to care, if it has notice of the date of hearing. Parties or their counsels are not obliged to look the daily list, unless some established procedure requires it. On the appellate side, notice itself is given for a date so that parties may engage counsels, who may appear in the case as and when posted. After the case is complete and there E is a chance of its being heard, it is first brought on the monthly list and from there it is brought on the weekly list and from the weekly list it is brought on the daily list. This procedure on the appellate side is being followed on the basis of the rules framed by the High Court which are contained in Volume V of the High Court Rules and Orders. No such rules have been framed on the original side and in the absence of rules being framed otherwise, the procedure provided in the Code of Civil Procedure ought to be followed. Since, no procedure was followed for fixing the date without notice to the plaintiffs or the defendants counsel, this itself is sufficient cause for the absence of the plaintiffs or their counsel either on 21st April, 1975 or 22nd April, 1975.

(6) The result is that the application is accepted and the suit is restored. The suit may now be posted for arguments on the preliminary issues on 9-1-1976.


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