Restoration
rohit
(Querist) 09 February 2010
This query is : Resolved
hi,
I am not a lawyer but an engineer.i have simple query from you friends.my civil property case was dismissed(2.5 year back) afte 10 yr of long journey.reason is i have not attended the case date's as 2 deaths occured in my family one after another.i was mentally disturbed
now question is how many chances are there to restore the case?(other party was declared as ex-party).
2)if i file case again,is there any -ve effect on new case due to pre case?
Sachin Bhatia
(Expert) 09 February 2010
The Limitation Act, 1963
122. To restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs.
PERIOD OF LIMITATION - Thirty days
TIME FROM WHICH PEROID BEGINS TO RUN - The date of dismissal.
Raj Kumar Makkad
(Expert) 09 February 2010
Law of limitation is very liberal. If you convince the court that there were compelling circumstances which obstructed you to attend the regular court and defend your case then subject to some cost, your case can be re-opened subject to an irreparable loss to you in case the ex-parte decree persists on.
B K Raghavendra Rao
(Expert) 09 February 2010
If you can show some satisfactory explanation to the court and convince, then there are chances of your case being re-opened. I think, deaths in your family is not a justifiable reason. It is possible to condone delay if some strong ground could be shown to the satisfaction of the court. If case is re-opened it will have not have any negative effect on the re-opened case.
Parveen Kr. Aggarwal
(Expert) 10 February 2010
Mr. Rohit
You have not stated on what ground the case was dismissed. It could have been dismissed in default - your failure to attend the case (under order 9, Rule 3, CPC) or could have been dismissed for your failure to lead evidence (on merits upon your failure to discharge the onus placed on you).
If your case has simply been dismissed under Order 9, Rule 3, CPC you need not worry. You may file a fresh suit and the provisions of Order 9, Rule 4 of CPC will come to your rescue as the other party was also not present at the time of decision of the suit.
rohit
(Querist) 10 February 2010
hi,
thanx to you all
as per m\Mr. parveen "You may file a fresh suit and the provisions of Order 9, Rule 4 of CPC will come to your rescue as the other party was also not present at the time of decision of the suit"...yes other party was not there.can you please elaborate the point?
i forget to mention one thing before that i have already filed restoration request.order yet to come.suppose if its rejected bcz accc to my adv. chances are 50-50.then what next..?If i file fresh case, it will agin take toooo.... much time.
yes i agree that case dismissed by my mistake.this is the reason m in your panel.i havn't attended the court dates.....what are the grounds on which i can place request to reopen..........................................one major que from you all...can i file same case again from the scratch?while restoration request is under process..?any -ve effect of dismissed case if i file fresh case again..?.................your friend,rohit(ER)
Parveen Kr. Aggarwal
(Expert) 11 February 2010
No. If you have already availed the remedy of filing a restoration application, you cannot avail the remedy of filing a fresh suit in case the application is declined. However, the Courts are liberal in allowing such application in case you explain the reasons for your not appearing in the court on the date fixed.
Rules 2,3 and 4 of Order 9, CPC are reproduced below for ready reference:
Rule 2. Dismissal of suit where summons not served in consequence of the plaintiffs failure to pay cost: "Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed:
Provided that no such order shall be made, if, notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer."
Rule 3. Where neither party appears, suit to be dismissed: "Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed."
Rule 4. Plaintiff may bring fresh suit or Court may restore suit to file: "Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
rohit
(Querist) 11 February 2010
hi,
i got all the points.yesterday night my lawyer informrd about the dismissal of case.......
................now what...?.....can i file case same case again ?as praveen told me "no" but i might be in mistake.
