Court No. - 05
Case :- CIVIL REVISION No. - 399 of 2011 Revisionist :- Smt. Anju Agarwal Opposite Party :- Jagdish Prasad Counsel for Revisionist :- Anita Tripathi Counsel for Opposite Party :- P.C. Jain Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Tripathi B.G. Bhai holding brief of Anita Tripathi, learned counsel for the plaintiff-revisionist and Sri P.C. Jain, learned counsel for the defendants-tenants/ respondents.
2. This revision has been filed praying to set aside the order dated 21.07.2010 whereby the S.C.C. Suit No.39 of 2007 (Smt. Anju Agarwal vs. Jagdish Prasad) was dismissed for non-prosecution. The revisionist has also prayed to set aside the order dated 21.04.2011 whereby his restoration application 4ga being Misc. Case No.67 of 2010, was rejected by the court of Additional District Judge, Court No.2, Agra.
3. The S.C.C. Suit No.39 of 2007 was filed by the plaintiff-landlady/ revisionist. She gave power of attorney to her close relative, namely Sri Krishna Kumar Agarwal son of Panna Lal Agarwal, resident of 1/129/2, Professor Colony, Hari Parvat, Agra to appear in court and attend the hearing of the aforesaid S.C.C. Suit No.39 of 2007 on her behalf and make statement and deposition also. This power of attorney dated 14.07.2009 was filed by the plaintiff in S.C.C. Suit No.39 of 2007. The aforesaid Sri Krishna Kumar Agarwal was accordingly making pairvi of the case. The fact that aforesaid Sri Krishna Agarwal was making pairvi in the aforesaid S.C.C. Suit No.39 of 2007 on behalf of plaintiff-landlady, is wholly undisputed. On 21.07.2010, the aforesaid S.C.C. Suit No.39 of 2007 was dismissed for non-prosecution at 1 P.M. A restoration application was filed on behalf of the plaintiff-landlady on 19.08.2010 under Order IX Rule 4 C.P.C. for setting aside the order dated 21.07.2010 2 and to restore the suit to its original number. The cause shown for non-appearance on 21.07.2010 was that the power of attorney holder was coming to the court to attend hearing of the aforesaid S.C.C. Suit No.39 of 2007 but in the way his motorcycle was hit from behind by a speedy motorcycle and he was injured and motorcycle was damaged, and owing to that he could not attend the court and could not inform his absence to his counsel.
4. There is no denial of the fact that Krishna Kumar Agarwal is the power of attorney holder of the plaintiff-landlady and he was making pairvi of the case on behalf of the plaintiff-landlady. The application under Order IX Rule 4, C.P.C. was supported by an affidavit of Sri Krishna Kumar Agarwal - power of attorney holder of the plaintiff- landlady. There is no material on record to indicate that the averments made in the affidavit filed in support of the restoration application, are false. Therefore, it cannot be said that cause for non- appearance was not sufficiently shown. The restoration application was filed within limitation. The plaintiff-landlady was not going to be benefited by dismissal of the suit for non-prosecution. Under the circumstances, I find that the impugned order dated 21.04.2011, suffers from manifest error of law for the reasons afore-stated.
5. In view of the aforesaid, the impugned order dated 21.07.2010 in S.C.C. Suit No.39 of 2007 (Anju Agarwal vs. Jagdish Prasad) and the impugned order dated 21.04.2011 in Misc. Case No.67 of 2010, are hereby set aside. The S.C.C. Suit No.39 of 2007 (Anju Agarwal vs. Jagdish Prasad) is restored to its original number.
6. Since the suit itself is of the year 2007, therefore, it is expected that the concerned court below shall decide the aforesaid S.C.C. Suit No.39 of 2007 (Anju Agarwal vs. Jagdish Prasad) in accordance with law, expeditiously.
7. The Revision is allowed to the extent indicated above.
Order Date :- 26.09.2019 NLY