IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 353 of 2009 Date of Decision 24th June ,2011 ________________________________________________________ Oma Devi ….Appellant Versus Mool Raj & others ….Respondents. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ________________________________________________________ For the Appellant: Mr. Tek Chand Sharma, Advocate. For Respondent No. 1: Mr. N.K. Thakur, Advocate. For Respondent No. 4 & 5: Mr. Shanti Sarup, Advocate. For Respondent No.2,& 3: None. _____________________________________________________________ Dev Darshan Sud, J (oral) This appeal has been preferred by the appellant herein against the order passed by the learned District Judge, Una dismissing the application under Order 41 Rule 19, Order 9 Rule 9 readwith Section 151 of the Code of Civil Procedure for restoration of the appeal which was dismissed in default by order of the Court dated 18.4.2009. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 2. The appellant herein was the petitioner before the learned Appellate Court in the petition out of which these proceedings arise. It is undisputed before me that on 16.9.2005 the appeal was dismissed in default, as no one appeared on behalf of the appellant/applicant. It was pleaded that Shri Ajmer Singh Advocate had been engaged to represent the appellant herein and he was appearing on every date of hearing. Occasionally, the petitioner was inquiring from the learned counsel about the case, but on the date on which it was dismissed in default, neither the counsel nor the appellant attended the Court. Resultantly, the appeal was dismissed in default without decision rendered on merits. The pleading then continues that in the month of July 2005, the appellant was looking after her daughter who delivered her first child in July and in the first week of that month she was at Shimla. Inquiry with respect to the case was only made in the month of February 2006 when she was informed that her case was dismissed in default in the month of September, 2005. Thereafter, the case was pursued. 3. The Court also notices the reply that Civil Revision No. 28 of 2003 was instituted by the appellant before the High Court on 1.3.2005 (again against an order of dismissal in default) and the parties were directed to appear on 2.4.2005 with a direction to pay ` 500/- as costs. On that date the parties through their counsel were present and the case was adjourned for 28.4.2005 for payment of costs. During this period, the notices were ordered to be issued to the legal representatives and the case was adjourned for 18.5.2005. Since no steps were taken, 3 cost of ` 1000/- was imposed upon her and the case was then adjourned for 16.9.2005, on which date the case was dismissed in default. In other words, the case set out by the respondent is one of constant defaults made by the appellant herein. 4. The learned Court on the evidence, which was led by the parties, held that sufficient cause had not been proved. In particular, the Court noticed that Civil Appeal No. 200 of 1998, which was preferred by the appellant herein, was dismissed in default on 5.10.2002 and while doing so, it was found that process fee had not been filed for the last ten dates of hearing. This order was challenged in the High Court by Civil Revision No. 28 of 2003 which was allowed by this Court vide order dated 1.3.2005 subject to payment of ` 500/- as costs and further proceedings continued. The Court also noticed that on 28.4.2005, the cost was deposited, but subsequent follow up action was not taken. In other words, the appellant is a habitual and constant defaulter for not complying the order of the Court and in these circumstances, the evidence which was led by the appellant herein, when assessed in the light of constant default pattern, was held insufficient to establish her bonafides. 5. I have heard learned counsel appearing for the appellant as also gone through the record. 6. I may not repeat what has been appreciated by the trial Court, but nonetheless I note with consternation that the appellant is habitual in non-compliance of the Court orders and adopts a ploy of getting dismissal of her case in default for prolonging the litigation and then restoration by setting up all kinds of excuses. 4 7. What I need say is that the record of the revision petition noted above is revealing. The case having been dismissed in default, the appellant takes the chance before this Court and when discretion is exercised in her favour, she again commits persistent defaults. In these circumstances, I do not find that intervention by this Court is called for. This appeal is, therefore, dismissed. June 24th, 2011 (Dev Darshan Sud), ms Judge 5