# Prayag Up Nivesan Avas Avam Nirman Sahkari Samiti v. F.C. Mehrotra

- **Citation:** (2001) 1 ILRA 134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prayag-up-nivesan-avas-avam-nirman-sahkari-samiti-v-f-c-mehrotra-39576
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
134
Sisters of The Roman Catholic church. It
is well known that the sisters of the
Roman Catholic Church are doing very
noble work in India and they have made
great sacrifices denying to themselves
family life and other comforts and
pleasure and are serving society by
running
excellent
convent
schools
,hospitals etc. It is deeply regrettable that
Sister Phyllis was detained by the
authorities and the jeep of the petitioner
was attached although the point had
already been decided by orders dated
27.7.84 and 11.9.87 which held that the
properties of the petitioner except from
general taxes. In the circumstances the
writ
petition
is
allowed
and
the
respondents are directed to refund the
amount of Rs.346875/- illegally realised
on 13.2.97 along with 15% interest from
13.2.97 till date. The refund of this
amount with interest must be made to the
petitioner within two month from today
by
the
respondents.
addition
the
respondents must pay an extra amount of
rupees Rs.25,000/- to the petitioner as
damages for the harassment caused to the
Sister who are running the hospital and
this amount must also be paid to the
petitioner within two month from today.
The impugned assessment order which is
Annexure 2 to the amendment application
is quashed. The respondents are also
restrained from realising water tax sever
tax and other municipal dues from the
petitioner is future till the aforesaid
amounts are paid to the petitioner.

10. The writ petition is allowed with
the aforesaid directions.

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1All] Prayag Up Nivesan Avas Avam Nirman Sahkari Samiti V. F.C. Mehrotra 135
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By the Court

1. This appeal has been preferred
against the order of the learned civil
Judge dated 25.3.1998 rejecting the
application of the plaintiff under Order 9
Rule 9 of the C.P.C. for setting aside the
order of dismissal of the suit under Rule 8
of Order IX.

2. We have heard Sri G.N. Verma,
learned Senior Counsel appearing for the
appellant and Sri Krishna Mohan, learned
counsel appearing for the respondent.

3. The appellant filed Suit No. 573
of
1990
for
specific
performance.
However, when the plaintiff appellant
failed to appear on the date of hearing i.e.,
4.1.1996 it was dismissed under Order IX
Rule 8 of the C.P.C. An application for
restoration of the suit under Order 9 Rule
9 was moved on 2.2.1996 but the learned
Ist
Additional
Civil
Judge
(Senior
Division),Allahabad by the order under
appeal dated 25.3.1998, rejected the same,
inter alia, on the ground that from the date
of dismissal of the suit, i.e. 4.1.1996 till
the date of filing of the restoration
application, i.e. 2.2.1996,day to day
explanation has not been furnished by the
appellant; and that the application has not
been moved by Abhay Nasrain Pandey
who was the Secretary of the plaintiff
society.

4. Sri Verma, learned counsel for the
appellant vehemently argued that the
application under Rule 9 was filed within
time and therefore, the learned court
below erred in holding that the appellant
was required to give explanation of each
day from 4.1.1996 up to 2.2.1996.He
further argued that as the appellant was
seriously ill since 30.12.1995 and was
medically advised to take bed rest, he
could not appear on the date fixed, i.e.
4.1.1996 but the learned court below
without appreciating that there was
sufficient cause for not attending the court
on the date fixed, wrongly rejected the
application.

5. On the other hand, learned
counsel for the respondent argued that the
suit was fixed for hearing on 4.1.1996 and
when the appellant did not appear, it was
dismissed under Rule 8 of Order 9 But the
appellant did not move the application
under Order 9 Rule 9 and, therefore, the
alleged application moved on 2.2.1996
being not maintainable, was rightly
rejected. He further argued that the suit
was filed through jai Prakash Ojha, the
Secretary
of
the
society
but
the
application for restoration was moved by
Abhay Narain Pandey who is not the
Secretary of the plaintiff society and,
therefore, at his instance it was not
maintainable.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
136
6. It is not in dispute that the suit
was fixed for hearing on 4.1.1996 and
was dismissed in default under Rule 8 of
Order IX. It is also admitted that the
application for restoration was moved on
2.2.1996 within time giving explanation
for the absence on the date of hearing.
However, the learned court below without
considering the explanation furnished by
the plaintiff appellant for his absence
rejected the application mainly on three
grounds, viz., (I) that no reasonable
explanation for each day with effect from
43131996 to 2.2.1996 has been furnished
to show as to under what circumstances
he had no knowledge about the order
dated 43131996 dismissing the suit in
default and why the application has not
been moved immediately thereafter (II)
On earlier occasion also the suit was
dismissed on 9.9.1994 and (III) that the
suit was filed through Jai Prakash Ojha,
Secretary
of
the
Society
but
the
application for restoration was moved by
Abhai Narain Pandey.

7. In our view, the learned court
below fell in error by addressing that the
plaintiff was required to give satisfactory
explanation of each day from the date of
dismissal of the suit till the date of filing
of
the
restoration
application
when
admittedly the application for restoration
was moved within time.

8. If sufficient cause is made out for
non-appearance of the plaintiff on the date
fixed for hearing and the plaintiff
approached the court for restoration of the
suit within the statutory period, in that
even the plaintiff is not required to
explain each day from the date of
dismissal of the suit till the date of filing
of the restoration application. While
deciding the application under Order 9
Rule 9, the only point which is to be
considered by the trial court is the
existence of sufficient cause for the non
appearance when the suit was called on
far heading and if it is proved that the
plaintiff was prevented from appearing on
the date of hearing on account of
sufficient cause, normally the restoration
application is to be allowed provided the
absence was not mala fide or intentional
with a view to delay the disposal of the
suit. It has not been found by the learned
trial court that the plaintiff mala fidely
and intentionally did not appear on the
date of hearing.

9. In Para 1 of the affidavit filed
along with the restoration application, it
has been asserted that the deponent is the
Secretary of the Society (plaintiff) since
last one year and is doing Pairvi on behalf
of the plaintiff which has not been denied
in the counter affidavit filed by the
defendant before the court below. Thus,.
The statement that Abhai Narain Pandey
was the secretary since last one year on
the date of dismissal of the suit in default
goes uncontroverted.

10. The submission advanced on
behalf
of
the
defendant
that
the
application was not moved under Order 9
Rule 9 as the provision was not
mentioned
on
the
application
and,
therefore, it was rightly reject, has also no
force and deserves to be rejected. It is
settled legal position that it is not the form
of petition or application but it is the
substance and contents. Which is to be
seen. Non mentioning of the provision or
its wrong labeling will have no effect and
the court is required to look to the
contents and substance of the application.
From a perusal of the application dated
2.2.1996, it is apparent that it was filed to
1All] Ram Pal Singh V. State Transport Appellate Tribunal , Lucknow & others 137
 recall the order dated 4.1.1996
dismissing the suit in default. Therefrom,
in effect it was an application under Order
9 Rule 9 and the simple question which
the learned trial court had before him for
consideration was as to whether on the
date fixed for hearing the plaintiff
appellant was prevented from attending
the court because of sufficient cause or
not and the explanation furnished by him
for
his
non-appearance
constitutes
sufficient cause or no.

11. In the casein hand, the
explanation furnished by the plaintiff
appellant was that he had fallen ill and
was advised bed rest till 15.1.1996 and,
therefore,
could
not
appear.
The
defendant did not give any evidence to
how that the plaintiff was not ill during
that
period.
In
our
opinion,
the
explanation furnished by the plaintiff for
non-appearance does constitute sufficient
cause for his absence. In this view of the
matter, the appeal deserves to be allowed.

12. In the result, this appeal is
allowed. The order of the learned Civil
Judge dated 25.3.1998 is hereby set aside
and the suit No.573 of 1990 is restored for
decision on merit. We further hope and
trust that the learned trial court shall
endeavor
to
dispose
of
the
suit
expeditiously preferably within a period
of six months. Learned counsels for both
the parties have made statement on behalf
of their clients that they will not seek
unnecessary adjournments and will appear
before the court below on the date of
hearing.

13. There shall be no order as to
costs.

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