.'vS^'^'^v^JV'f ->, ^^^^S^^&'^^^^Bi^^'A&SS^ c' ^M ^yt m THE mGH COURT OF CHHATTISGARH AT BILASPUR fG.G.1 Miscellaneous AppeaINo. /08 Appellant Plaintiff ^^s^- .-:•%£ W--'"'^h-l it'^' £S4WTTJg ife?»]S'3»" ^""IA-.-S^ ,^®u'*' •i 2^' Surjeet Singh Saluja S/o Shri Chunnilal Saluja Agedabout 49years-/ , R/o Telipara Bilaspur ^' Tahsil & District Bilaspur (C.G.) Versus ReSDondent Defendant : l)MohanPatley S/o Shri Buddhulal Patley Aged about 58 years ^-' R/o Daldalihyapara Sakri Tahsil Takhatpiir District Bilaspur 2) State OfChhattisgarh Through CollectorBilaspur Bilaspur (C.G.) MisceUaneOusAppeaIunderOrder43 Rulel(c) bfthe GodeOfCivil Procedure. ^Ss'i-i'j;).:;.-'^' HK3H COURT OF CHMAJTISGARM ATBILASPUR M.A. No. 890F 20)8 APPEU-ANT Piaintiff Surjeet Singh Saluja Versus Mohan Patley&another RESPONDENT Defendant MISC. APPEAL UNDER ORDER 43 RULE 1 (C) OF CPC (SB: Hon'bte Mr. N.K. Aaarwal.J.t Present ShriKN Nandey, Advocate for appellant. Shri SC Verma, Advocate forrespondent No. 1 Shri SRJ Jaiswal.Panel Lawyer forthe State. ORALCNTOER (Passedon 09.11.2011) The instant appeal filed under Order 41 Rule t(C) of CPC is directed against the order dated 17.06.2008, (»^ed by the Addltional DistrictJudge, Bllaspur In Misc. Civil Case No. 50008, whereby and whereunder the application preferred by ffie applicant under Order 9 Rule9 read with Section 151 of CPC for restoration of Civil Suit No. 4-A/06 has been dismissed. ~1 Brleffaete ofthecaseare, Civil Suit fited by the appellantwas fixect for appellant's/plaintifTs evidence on 05.12.2007. On that date, appellantwas suffering Trom fever and loose motion and therefore ne'rther hecould attend the court norcould inform his counsel. The suitwas dismissed for his non appearance. Application underOrderS RuleS Feadwith SeGtion151 ofCPCfor restoration of Civil Quitwas fited by the appellanVplaintiffon the ground that due to hls itlness he eould not appear before the court ffifi fc :"^- on the date of hearing i.e. 05.12.2007 and his absence was bonafide andtherefore Civil Suit deservesto be restored. 4. PrayerwasopposedbytherespondentNo. 1/defendant. 5. The triat court, disbelieving the doctor's prescriptfon filed by the appellant, dlsmissedthe saidapplication. Hence thlsappeal. 6. Shri Nande, leamed counsel appearing for the appellant would submit no document has been flled by the respondent No. 1/defendant in rebuttal of the document filed by the appellant. The appellant was suffering frem fever and loose motion on that date and due to above fact neither he could appear In ttie eourt nor could inform his counsel, and therefore, there was sufficient cause for his non appearanceon the date of hearing and the triat court should have set aside dismlssal order and should have restored the suit. 7. Per contra, Shri Verma, learned counsel appearing for the respondent No. 1/defendant supported the order Impugned and submit in the factsand circumstances ofthecase, thetrial court has rightly disallowed the appellants' application for restoration of Civil°SGitwhich does not call for any interference. 8. I have heard the eounsel appearing for the parties and perused the order impugned. 9. A bare perusal of recordwould reveat the respondent/defendant did not flle anyaffidavit in supportofhis reply totheappellants' appliration filed under Order 9 Rule 9 read wth Section 151 of CPC. There Is nothing on reeord to suggestthe fact that appeltant/plaintlff was not suffering from fever or loose motion on ^ 10. 11 the date of hearing i.e. 05.12.2007. The cause of non appearance shown stands un-rebutted, therefore, reason assigned by the appellant for his non appearance on the date of hearing appeare to be bonafide and suffieient and the trial court should have allowed the applicationand should have restored the suit. Therefore, the trial court has comm'rtted grave illegality in rejecting appeHant's application for restoration ofCivil Suit. For the reasons mentionKl hereinabove, the appeal is allowed. Order impugned dated 17.(%.2008 is set aside. Civil Suit is restored to its original number. The trial court Is directal to decide the suiton its own merits in aceordance with law expeditiously. The parties are directed to remain present before the trial eourton 12.12.2011. 12. Record oftrial court be sent baek forthwith. Sd/- N.K. Agrawal Judge Sahu