Suit d.i.d
ksvrajuadv
(Querist) 01 March 2012
This query is : Resolved
A suit was on PWs stage,on repeated orders of court plaintiff did not tender any evidence by giving him number of opputunties, on 23/7/2011 court gave last opprtunity & also put cost of RS 1000/ on 20/8/2011 plaintiff again not tender any evidence,court decreed suit dismiss in default wid cost.now plaintiff filed appeal u/s 96 cpc & take plea that counsel of plaintiff was busy on 20/8/2011 in session court & when after lunch appeared in court a decree of d.i,d was passed against him.now my query is is this appeal maintanable or not.what law favour to the defendent.
R.K Nanda
(Expert) 01 March 2012
FILE APPEAL
R.K.NANDA-ADVOCATE
Raj Kumar Makkad
(Expert) 01 March 2012
Plaintiff can very well file such appeal and if appellate court find the reasons within the limit and within merit can set aside the order of 'dismissed in default'. The defendant should strongly resist the appeal and should establish that the plaintiff had been provided with maximum opportunities for leading his evidence but he failed and same was his position on the day when his case was dismissed in default so case should not be re-opened.
Even if order is set aside a heavy cost shall be clamped upon hi,.
Adv.R.P.Chugh
(Expert) 01 March 2012
Dear Querist,
I don't think there is a lot of merit in the appeal, wilful obstinacy and contumacy is writ large on the face of the record - the plaintiff despite repeated opportunities failed to show sincerity vis-a-vis the proceedings. However the court may in the interests of natural justice, pass an order setting aside dismissal for default and remanding matter back may - impose heavy costs.
Bharat
Deepak Nair
(Expert) 01 March 2012
Appeal filed is legally maintainable. But the respondent can contest the appeal and state that the dismissal was due to repeated absense even after giving sufficient opportunities.
The story of advocate held up in another court will not work out. The party himself could have appeared to keep back the matter for some time.
M V Gupta
(Expert) 08 March 2012
An appeal on the ground mentioned can definitely be successfully contested. The ground is not acceptable. If the Advocate is busy what happened to the Plaintiff? He should have appeared in the court and requested the court to keep the matter aside for hearing.
