1 ao541-2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 541 OF 2009 Shri Satishkumar Satyanarayan Agarwal ...Appellant vs. Shri Dadabhau Dhanaji Salve & Ors. ...Respondents Shri G.S. Godbole for the Appellant. Shri Nitesh Bhutekar i/b. Mr.Uday P. Warunjikar for Respondent Nos.1 to 3. CORAM : J.H. BHATIA, J. DATED : OCTOBER 11, 2010 P.C. :- 1 Heard learned Counsel for the parties. 2 The present appellant had filed Special Civil Suit No.1884 of 1995 for Specific Performance of Contract for sale of immovable property. The matter was fixed for evidence. On 9th June, 2004, the plaintiff was absent and the suit came to be dismissed in default. In first week of August 2004, 2 ao541-2009 he filed an application for restoration of the suit. According to him on 9th June, 2004 due to high blood pressure, he was not keeping well and therefore, he could not attend the court. His Advocate was busy in some other court on that day. According to him, on 19th June, 2004, he applied for certified copy of the order of dismissal of the suit and after obtaining that order, he moved the application for restoration. The trial court called upon the parties to lead evidence. The trial court rejected the application on the ground that the suit was very old and in the affidavit of examination-in-chief, he had given his explanation about his absence only on 9th June, 2004 though he was also absent on the earlier two dates. The trial court held that sufficient cause has not been given for his absence. 3 After hearing the parties and on perusal of the record, I find that even though the suit was pending since 1995, the suit was dismissed in default on 9th June, 2004. The learned Counsel for 3 ao541-2009 the plaintiff-appellant contended that the plaintiff was required to explain the circumstances in which he was prevented from appearing on that particular date and not on earlier two dates. The learned Counsel finds support from a case reported in 2000 (3) SCC 54 (G.P. Srivastava vs. R.K. Raizada and others) wherein the Supreme Court observed thus :- 7. Under Order 9 Rule 13 CPC an exparte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Unless sufficient cause is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words was prevented by any sufficient cause from appearing must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in 4 ao541-2009 deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The sufficient cause for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. ......... 4 In the present case, the plaintiff had explained that he was not keeping well due to high blood pressure on 9th June, 2004 and therefore, he could not attend the court. He also submitted Medical Certificate to that effect. Record also reveals that on the previous date, both the parties were not present before the court and the matter was fixed for dismissal on 9th June, 2004 when the plaintiff did not appear and the matter was finally dismissed. 5 ao541-2009 5 Taking into consideration all the circumstances and in view of the fact that the suit was pending for long time, the interest of justice requires that the suit should have been restored to file by imposing reasonable costs on the plaintiffs. 6 For the aforesaid reasons, appeal is allowed. The impugned order is set aside and subject to payment of costs of Rs.10,000/- by the plaintiff to the defendant, Special Civil Suit No.1884/1995 is hereby restored to the file of the trial court. The costs to be deposited before the trial court within four weeks from this date. The trial court shall expedite the hearing and dispose of the suit, as early as possible. (J.H. BHATIA, J.)