ICICI BANK LTD Vs. VIKRAM SETH

JUDGEMENT

(1.) The Plaintiff has taken out this Notice of Motion for setting aside the order of dismissal dated 30th August, 2008. The order of dismissal is passed for want of the Plaintiff's affidavit of evidence despite 4 adjournments granted for that purpose. The Suit is, therefore, dismissed under Order 17 Rule 3 read with Rule 2 of the Code of Civil Procedure. Order 17 Rules 3 & 2 run thus :

(2.) The Suit under the aforesaid provision is dismissed upon seeing that the Plaintiff did not prosecute the Suit. Restoration of such Suit would mean that this Court sits in Appeal against the order of dismissal. It would mean that what the Plaintiff could not obtain from the Court on the date of dismissal, the Plaintiff can obtain from the same Court much later in another application. The entire purpose of Order 17 Rule 3 would be defeated if such an application is granted.

(3.) A Notice of Motion for restoration is maintainable only for a Suit dismissed for default. Such a Suit would have to be dismissed under Order 9 Rule 3 of the Code of Civil Procedure. Order 9 Rule 3 runs thus :