- (1.) BY the Court: This Misc. Appeal under section 43 Rule 1 read with section 104 of CPC has been filed against the impugned order dated 21.2.2011 passed by Addl. District Judge (FT) No.4, Ajmer in Civil Misc. Application No.146/2009 whereby the application for restoration of restoration application under Order 9 Rule 9 of CPC has been rejected. The short facts of the case are that the present appellants have filed a civil suit for partition of immovable property before the District Judge, Ajmer on 7.7.2000. In the course of hearing, nobody could appear before the court below and the suit was dismissed in default vide order dated 24.2.2007. Present appellants have preferred restoration application on 1.3.2007 but this restoration application was also dismissed in default on 24.10.2009. Thereafter, an application was preferred for restoration of restoration application on 23.11.2009 which was dismissed. Hence, this appeal.
(2.) THE contention of present appellants is that they are living in Allahabad and they could not appear before the court below, hence, one more opportunity should be given to them to restore their suit. In course of argument, it has been stated that their father is an advocate, he appeared before the court below but due to his mental illness he could not appear on the prescribed time, hence, the court below was not justified in dismissing the application and reliance has been placed on AIR 1981 SC 1400, Rafiq and another vs Munshilal and another, where it has been held that the parties should not suffer for the inaction of his counsel. There is no dispute about the legal position but in the present case, the contention of the appellants is that there father who also a party as well as an advocate was appearing before the court below and due their mental sickness they could not appear. This itself is a contradictory statement and could not be termed as sufficient ground. Further reliance has been placed on AIR 1994 Delhi 359, Bank of Baroda vs Sansar Chand Kapur and another,AIR 2000 SC 1221, G.P.Srivastava vs R. Raizada and others, 2001 (92) R.D.129(Allahabad High Court) Prayag UP Nivesan Avas Avam Nirman Sahkari Samiti Ltd vs Faquir Chandra Mehrotra and 2004 (57) ALR 182 (Uttaranchal High Court), Mahant Prayag Giri and another and Committee of Management Sri Mithilesh Sanatan Dharm Higher Secondary School, Kankhal, Haridwar and others. But these relate to order 9 Rule 9 of CPC where question of restoration of suit was involved. In the present case, suit was dismissed on 24.2.2007, thereafter restoration application was also dismissed in October,2009 and the contention of the respondent is that party who is negligent could not be condoned at every time and there is no illegality in the impugned order. Reliance has been placed on RLW 1953 page 469 Tejraj vs Sansmal where it has been held that: " We think that there is a limit to which the negligence of a party can be condoned by the court in its inherent power under section 151. The court had already entertained one application under sec. 151 on the 25th April, 1952; but the party was again negligent and allowed that application to be dismissed for default. We think, under the circumstances, that if the court in effect refused to exercise its powers under sec. 151, we cannot say that it was in any way acting improperly. As a matter of fact, successive applications like this bringing to the notice of the court that it should exercise its powers under sec. 151 would amount to an abuse of the process of the court, and a party, who allows one application after another to be dismissed like this cannot expect the court to assist him by exercising its powers under sec. 151. " Looking at the above that the appellants were negligent time and again, the learned court below has rightly dismissed the application. There is no illegality in the impugned order and this appeal is liable to be rejected and is accordingly rejected.;