- (1.)Civil Suit No. 3A/92 for redemption of mortgage, restoration of possession and perpetual injunction, was initially instituted on 7-8-1992 by one Sewaram, father of there revisionists. After service on defendants but before filing of the written statement, original plaintiff died on 14-8-1996. Application for legal representatives was submitted under Order XXII, Rule 3, Civil Procedure Code on 13-11-1996, which contained the names of the plaintiffs/revisionists and non-applicant No. 3. Revisionists were minors at the relevant time, aged 15 and 12 years, respectively and were represented by non-applicant No. 3 in the capacity of next friend. Written statement was submitted on 22-8-1997, refuting thereby the averments contained in the plaint. Issues were raised by the learned Trial Judge on 4-3-1998 and the case fixed for evidence of the plaintiffs. Adjournments were sought by the lawyer on behalf of the plaintiffs on 26-6-1998, 13-8-1998 and 22-9-1998. On 9-12-1998, last opportunity was granted for evidence and the case was adjourned to 5-2-1999. On this day, neither the plaintiffs nor their counsel appeared before the trial Court, consequently the suit was dismissed in default of appearance on 5-2-1999.
(2.)Plaintiffs/revisionists on 5-2-2001 submitted an application under Order IX, Rule 9, Civil Procedure Code for restoration of Civil Suit No. 3A/1992 with allegations that they were minors at the time of dismissal of the suit in default of appearance. It is pleaded that neither they were aware of dismissal of the suit nor of having been impleaded in it. Non-applicant No. 3 who was described as their next friend did not take due care of their interests. She did not inform the plaintiffs/revisionists about dismissal of the suit. On 12-12-2001, revisionist No. 1, for the first time, came to know about the aforesaid dismissal when it was disclosed orally in the pending case under section 145 of Criminal Procedure Code before the City Magistrate that the suit instituted by their father was already dismissed. After collecting information, application under Order IX, Rule 9, Civil Procedure Code was submitted on 18-12-2001 along with application under section 5 of Indian Limitation Act to seek condonation of delay.
(3.)Defendants/non-applicants No. 1 and 2 submitted their reply contending, inter alia, that number of opportunities were granted to plaintiffs to adduce evidence. Revisionist No. 1 and non-applicant No. 3 being plaintiffs No. 1 and 2 were present in the Court, but did not deliberately adduce evidence. They are all residing together and were well aware of dismissal of the suit in default of appearance. Thus, there being no sufficient cause, the application is liable to be dismissed.