Restoration of suit
Querist :
Anonymous
(Querist) 16 February 2010
This query is : Resolved
Plaintiff filed a suit in year 2003 praying to declare him as owner and recovery of possessoin, cancelation of sale deeds and declaring as null & void.
The suit is dismissed for default in the year 2004, but the advocate on record has not informed the plaintiff till his demise. The plaintiff during his life time was under the impression that the suit is running.
In the year August 2009 plainitff died and now the daughter of plaintiff came to know about the suit and its dismissal and immediately demanded the advocate on record, then he gave no objection.
Now the daughter of plaintiff wants to contest the suit. So under which circumstances it is possible. Whether the suit is restored and daughter of plaintiff can be made as party to the suit.
Plz. suggest any judgments of any High court or Supreme court.
Parveen Kr. Aggarwal
(Expert) 16 February 2010
For restoration of a suit dismissed in default an application has to be filed either under Order 9, Rule 4 of the CPC or under Order 9, Rule 9 of the CPC. In case the suit was dismissed in default in the presence of the defendant then application is filed under latter provision whereas if the none on behalf of the defendant was present at the time when the suit was dismissed in default, then application is filed under the former provision. In case of presence of defendant at the time of such dismissal, restoration of suit is the only remedy and second suit cannot be filed whereas in the other case, the plaintiff may either file application for restoration of suit or file a separate suit.
Legal representatives of a deceased plaintiff may continue the proceedings of a suit after being impleaded by the order of the court.
Adv Amit Kulkarni
(Expert) 16 February 2010
in this case u have to file review application provided nder cpc praying to remending case for fresh ans new trial
Querist :
Anonymous
(Querist) 16 February 2010
Swami Sadashiva Brahmendra Sar
(Expert) 17 February 2010
Kindly see s 306 of the Indian Succession Act. Right of action which existed at the time of his death of a person, survives to and against his LRs.
Swami Sadashiva Brahmendra Sar
(Expert) 17 February 2010
The daughter has to file 4 applications i.e. restoration application along with delay condonation application and simultaneous substitution application alongwith delay condonation application.
adv. rajeev ( rajoo )
(Expert) 17 February 2010
Suit is already dismissed for defualt and moreover plaintiff is also no more, so daughter will have to file fresh suit to claim her tittle being a legal heir of the deceased father.
Instad of going for the restoration it is better to file fresh suit.
Raj Kumar Makkad
(Expert) 17 February 2010
The opinion of parveen read with tripathi is accurate in the given quarry.
Querist :
Anonymous
(Querist) 21 February 2010
Law reveals that an innocent can not be punished for others mistake. So under this ground any judgments please suggest..
