Pratibha Rani, J. - (1.)THE petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India with a prayer to set aside the order dated 15th July, 2014 passed in M.No. 20/14 whereby the learned ADJ dismissed the applications filed on behalf of the petitioner under Order IX Rule 4 CPC for restoration of the suit which has been dismissed in default by the learned Trial Court as well as application under Section 5 of the Limitation Act for condonation of delay.
(2.)THE impugned order vide which the application seeking restoration of the suit as well as application for condonation of delay have been dismissed reads as under: -
"15.07.2014

File taken up today on an application filed under Order 9 Rule 4 CPC for seeking recall of the order dated 10.05.2011 whereby the suit of the plaintiff was dismissed in default as well as application under Section 5 of Limitation Act.

Present: Sh. Manoj Sharma, Ld. Counsel for the applicant/plaintiff.

I have heard Ld. counsel for the applicant/plaintiff and also perused the application. Vide this application, applicant/plaintiff is seeking recall of the order dated 10.05.2011 whereby the suit of the plaintiff was dismissed in default. The application for restoration of the suit can be filed within 30 days from the date of dismissal of the suit. However, the instant application has been filed on 03.06.2014 i.e. after more than three years from the date of passing of the order dated 10.05.2011.

The ground for condonation of delay of more than 3 years is that plaintiff was not aware about the dismissal of the suit and he come to know only on 19.05.2014. The plea is not acceptable for the simple reason that plaintiff is presume to know about his case and he cannot be allowed to say that he was not aware of the suit. No ground is made out for condonation of more than 3 years in filing the application under Order 9 Rule 4 CPC. Accordingly, application under Section 5 of Limitation is dismissed. The application under Order 9 Rule 4 CPC is also dismissed being barred by limitation. File be consigned to record room after due compliance."

Mr. Rajiv Bakshi, Advocate appearing on behalf of the petitioner has submitted that in this case respondent has been proceeded ex -parte. Arguments have been concluded and the case was listed for orders. However, on the date fixed for pronouncement of order, the order was not pronounced. Thereafter the matter was repeatedly adjourned and on 10th May, 2011 it was dismissed in default. It has been further submitted that in the application seeking restoration in the suit and also the reason under which restoration application could not be filed within time, have not been dealt with by learned Trial Court. Thus, without considering the grounds mentioned in the restoration application as well as application seeking condonation of delay, learned Trial Court has declined the prayer of the petitioner to restore the said suit. Learned counsel for the petitioner has drawn the attention of this Court to the circumstances under which petitioner could not appear before the learned Trial Court i.e. kidnapping of the son of the petitioner for which FIR No. 25/2011 was registered at PS Vidya Nagar, Hubli, Karnataka as well as matrimonial dispute with the daughter of the petitioner which also led the initiation of the criminal proceedings and registration of FIR No. 84/2013 at Mahila Police Station, Hubli. These instances mentally disturbed the petitioner and he could not interact with his counsel and follow up the matter.

(3.)THE petitioner has placed on record copy of proceedings of the learned Trial Court. A Civil Suit for Rendition of Accounts, recovery of Monies, return of Machinery and Cancellation of documents was filed by the petitioner in the year 2005 against the respondent Avtar Singh Walia S/o. Sh. Jawala Singh, Partner, M/s. APCON ENGINEERS AND CONSTRACTORS, A -17, Lajpat Nagar -II, New Delhi. The petitioner led ex -parte evidence and at the stage of judgment it was dismissed in default.