CM(M) No. 1783/2006 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: March 2nd, 2009 + CM(M) No. 1783/2006 PHOENIX YULE LIMITED …Petitioner Through : Mr. A.S. Mathur, Advocate with Ms. Neha Khatri, Advocate. Versus J.K. UDAIPUR UDYOG LIMITED …Respondent Through : Nemo. CORAM: * HON'BLE MS. JUSTICE VEENA BIRBAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Veena Birbal, J. Petitioner/Plaintiff had filed a Suit under Order XXXVII of CPC for recovery of Rs.15,09,890/- (Rupees Fifteen Lacs Nine Thousand Eight Hundred and Ninety Only) against respondent/defendant. Initially, the suit was filed for recovery of Rs.6,34,358/- (Rupees Six Lacs Thirty Four Thousand Three Hundred Fifty Eight Only). However, after seeking amendment by making application under Order 6 Rule 17 read with Section 151 CPC for amendment of plaint, certain other sums were included and the petitioner had in all claimed recovery of Rs.15,09,890/-. As per facts stated in the petition, it is CM(M) No. 1783/2006 Page 2 stated that leave to defend application had already been filed by the respondent/defendant in the aforesaid suit. Petitioner had also filed its reply. Rejoinder thereto was also filed by respondent/defendant and the matter was listed before Ld. ADJ on 25.1.2006 for arguments on application for leave to defend. It is alleged that on the said date, counsel for petitioner/plaintiff was not in a position to attend the court as such he informed the authorized representatives of the company about his inability to attend the court. It is alleged that when authorized representative of the petitioner came to the court, there was a scuffle at the gate of the court between office bearers of Delhi Bar Association and other lawyers due to which the authorized representative also could not attend the court and the matter was dismissed for non-appearance on that day. On 16.3.2006, an application under Order 9 Rule 4 read with Section 151 CPC was moved for restoration of the suit along with an application under Section 5 of Limitation Act. Notice of said applications were issued to respondent. Thereafter, arguments were heard. Ultimately both these applications were dismissed vide impugned order dated 11.8.2006. Aggrieved with the same, present petition under Article 227 of the Constitution of India is filed. It is contended that Ld. ADJ has taken harsh view of the matter by not allowing the applications of the petitioners. Petitioner was able to show sufficient cause in not CM(M) No. 1783/2006 Page 3 appearing in the matter on date fixed. Ld. ADJ ought not have dismissed the applications on mere procedural technicalities. It is contended that applications were presented in accordance with law. In support of his contentions, Ld. Counsel has relied on Smt. Bishnupriya Rath v. President of Bhanjanagar College, Chatrapur & Ors., AIR 1985 Orissa 108 and The Airport Director, Airport Authority of India Chennai Airport v. Mr. Gnanasekaran, Manu/TN/0615/2004. Respondent has not appeared despite being served and was proceeded ex-parte vide order dated 8.8.2007 of this court. I have heard learned counsel for petitioner and perused the record. Petitioner had moved an application for restoration under Order 9 Rule 4 read with Section 151 CPC along with an application for condonation of delay before Ld. ADJ on 16.3.2006. Notice was served upon respondent. Ld. counsel for respondent had put in appearance there. However, he did not file any reply to the said applications. Ld. ADJ dismissed the application vide impugned order dated 11.8.2006. One of the grounds for dismissal of application for condonation of delay is that no medical certificate of counsel is attached though it is stated in the application that counsel was suffering from high fever and was able to join the work only after 10-15 days due to which delay had occurred. Perusal of record shows that the said application is CM(M) No. 1783/2006 Page 4 supported with affidavit of counsel for plaintiff. Ld. ADJ ought not have rejected the affidavit simply because medical certificate is not filed especially when the same has not been rebutted by the respondent. Even application under Order 9 Rule 4 read with Section 151 CPC, shows sufficient cause for non-appearance on the date fixed. However, learned ADJ has dismissed the same on the ground that same is not signed by plaintiff or his authorized representative. Perusal of record shows that both applications are signed by the counsel for the petitioner, i.e. plaintiff before the court below. Affidavit of counsel is also there with both the applications. His vakalatnama is also there on record. Hence the counsel was entitled to act on behalf of his client. The applications were filed to safeguard the interest of the client. Further the facts were also within the personal knowledge of counsel. Non-signing of the applications by the plaintiff or his authorized agent was only a formal defect/irregularity and not a serious defect and as such should not have been thrown on that ground. The above view finds support from judgment cited by Ld. Counsel for petitioner which are referred above. Paramount duty of the court is to do substantial justice and the approach of the court should be liberal and pragmatic so that no injustice is caused to the litigant who has approached the court with all expectations of getting justice. Dismissal of an application for CM(M) No. 1783/2006 Page 5 setting aside the dismissal order for default on technical consideration would definitely result in defeating the cause of substantial justice. Considering the peculiar facts and circumstances of the case, I allow the petition under Article 227 of the Constitution of India and set aside the impugned order dated 11.8.2006 passed by Ld. ADJ, Delhi. The application of petitioner under Order 9 Rule 4 read with Section 151 CPC along with application under Section 5 of Limitation Act made by petitioner before Ld. trial court are allowed. The suit of the petitioner is restored to its original number. The petitioner to appear before Ld. trial court on 17th March, 2009. Petition stands disposed of accordingly. Copy of this judgment be sent to the learned trial court. VEENA BIRBAL, J. March 2nd, 2009 kks