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Narender Kaur Vs. Pritam Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 377 of 1980
Judge
Reported in1982RLR428
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 9
AppellantNarender Kaur
RespondentPritam Singh
Advocates: Surendra Krishan, Adv
Cases ReferredIn Rafiq v. Munshilal.
Excerpt:
in the present case, the advocate for appellant had filed an application for adjournment under order 9 rule 9 of the civil procedure code, 1908 - the said application was filed on the ground that the appellant was suffering from fever allergic symptoms and was not in a position to attend on next date of hearing - the petition was dismissed in default, though already the application for adjournment was made - there was sufficient cause for the absence of appellant's counsel - thereforee, the delay of one day was condoned - .....appellant would not be in position to attend the court on 21.5.79 on account of her illness. the counsel thereforee, did not appear and the application u/s 25 of the act was dismissed. the appellant had engaged a counsel to prosecute the proceedings and thereforee, it was not necessary for her to attend the day to day hearing in the case. the appellant expected her counsel to appear on 21.5.79 but her counsel could not appear on account of her own illness. thus there was sufficient cause for the absence of the appellant's counsel on 21.5.79. (4) the next question is whether the delay of one day in filing the restoration application should be condoned. it is on record that the counsel for the petitioner was si;k on 21.5.79. the civil courts were closed on account of vacation up to 1.....
Judgment:

Sultan Singh, J.

(1) Appellant obtained a decree for judicial separation u/s 10(1) of Hindu Marriage Act, 1955 on 30.9.77 from the Court of Additional D.J. She thereafter filed an application for permanent alimony u/s 25 of the Act and-also an application for litigation expenses and maintenance. The respondent filed his w/s and reply to the application. On 13.4.1977 the proceedings were transferred to another ADJ. Counsel for the parties appeared before the transferee court and the proceedings were adjourned for arguments presumably on the application for litigation expenses to 21.5.79. There was no appearance on behalf of the appellant on 21.5.1979 and thereforee, her petition u/s 25 of the Act was-dismissed.

(2) On 3.7,1979 the appellant made an application for restoration of the proceedings under the Act alleging that her counsel suffering from severe allergic symptoms, that before the date fixed her counsel had made an application to the Court that she would not be in a position to attend the case on 21.5 1979, that inspire of her counsel's application for adjournment her petition was dismissed for default, that her absence was not intentional but bonafide. The appellant appeared as her own witness. She has deposed that she engaged Mrs. Surendra Krishan as her counsel, that she came to Court on 29 5.79 and learnt that her application u/s 25 of the Act was dismissed for default on 215.79, that she tried to contact her counsel but as she was out of station she met the counsel after vacation on 2.7.79, that her counsel on 3.7.79 then filed the application for restoration. In cross examination she has stated that she was not aware of the date 21 5.79 and thereforee, she did not appear in Court on that date. The respondent did not produce any evidence. The trial Court dismissed the application for restoration on the ground that it was barred by time and there was no sufficient cause Hence this first appeal.

(3) From the record of proceedings it is clear that on 14.5.79 the proceedings were adjourned to 21.5 79 for arguments There is an application dt. 18 5.79 on the record of trial Court by Mrs. Surendra Krishnan Advocate for the appellant stating that she was suffering from 'urticaria allergy symptoms' for the last one month, that she was not in a position to attend the case on the next date i.e. 21.5,79. A request for adjournment was thus made. The application for restoration is signed by the counsel Mrs. Surendra Krishnan and is supported by affidavit. From the unrebutted statement of the appellant in support other application for restoration, it if clear that she came to know of the dismissal order dt. 21.5.79 on 29.5.79, that she tried to contact her counsel, Mrs. Surendra Krishnan but as her counsel was out of station on account of vacation she met her on 2.7.79 and the present application was filed on 3.7.79. There are two points for decision in this appeal, (1) whether there was sufficient cause for the absence of the appellant or her counsel on 21.5.79, and (2) whether there was sufficient cause for condensation of delay in filing the restoration application on 3.7.79. As regards first point there is an application on record dated 18.5.79 that the counsel for the appellant would not be in position to attend the Court on 21.5.79 on account of her illness. The counsel thereforee, did not appear and the application u/s 25 of the Act was dismissed. The appellant had engaged a counsel to prosecute the proceedings and thereforee, it was not Necessary for her to attend the day to day hearing in the case. The appellant expected her counsel to appear on 21.5.79 but her counsel could not appear on account of her own illness. Thus there was sufficient cause for the absence of the appellant's counsel on 21.5.79.

(4) The next question is whether the delay of one day in filing the restoration application should be condoned. It is on record that the counsel for the petitioner was si;k on 21.5.79. The Civil Courts were closed on account of vacation up to 1 7.79. The application could have been filed on 2.7.79 but the unrebutted evidence of appellant shows that her counsel was out of station, that she met her after vacation on 2.7.79 and the application was filed on 3.7.79. The counsel was out of station and thereforee, one day was a reasonable time to be taken by the counsel for preparation of the application f9r restoration. The counsel filed her own affidavit in support of the restoration application. In view of these circumstances there was sufficient cause for not filing the restoration application before 3.7.79. The delay in filing the application is thereforee, condoned. In Rafiq v. Munshilal. : [1981]3SCR509 it has been observed that an innocent litigant could not be allowed to Suffer injustice for the default of his advocate, if any. In the present case the counsel for the appellant was sick and thereforee, she could not appear on 21.5.79. She had filed the written application for adjournment before the trial Court on 18.5.79. It appears that the request for adjournment made on 18.5.79 was not brought to the notice of the trial Court on 21.5.79 and thereforee, the petition was dismissed. The trial Court thereforee, was not correct in observing that there was no sufficient cause for restoration of the main petition or for condensation of delay in presenting the application for restoration. There is unrebutted evidence on behalf of the appellant. The Civil Courts were closed and reopened on 2,7.79. The appellant's Counsel, was out of station and thereforee, the application was filed on 3.7.79. The appeal is thereforee accepted and the impugned order dated 17.10.1979 refusing restoration of the petition u/s 25 of the Act is set aside.


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