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Suit dismissed on default for the second time

Querist : Anonymous (Querist) 27 July 2011 This query is : Resolved 
Madam/Sir,

I had filed a civil suit and on the date fixed for filing of evidence on affidavit of my witnesses, both my lawyer and I were absent from Court. So, my case was dismissed on default under Order 9, Rule 8. This is the second time it's happened. The first time the Court restored my suit. Please help. What do I do now?
Also, is date fixed for filing of evidence on affidavit a "hearing"? Please, please provide judgements, if possible.
Thank you.
ajay sethi (Expert) 27 July 2011
you will have to take out notice of motion for setting aside order of dismissal . the affidavit in support must state in details reasons why you and lawyer were absent on date fixed for hearing .

DEFENSE ADVOCATE.-firmaction@g (Expert) 27 July 2011
Restoration for second time is difficult.
R.Ramachandran (Expert) 27 July 2011
As advised by Mr. Ajay Sethi, you have to make an application for restoration of the case by giving very cogent, tenable and convincing reasons as to why either your lawyer or you could not be present when the case was listed on that day. The Personal Affidavit by your Advocate owning his responsibility and his inability will play a vital role in getting the matter restored. Once a client has engaged a lawyer, it is the lawyer's responsibility to put up an appearance on the day of hearing, and the client should not be penalised. In fact the application for restoration has to be moved very very quickly without losing any time.
Shastri J.K. (Expert) 27 July 2011
You can file second time application for restored Under Order 9, Rule 8.
Querist : Anonymous (Querist) 27 July 2011
Thank you experts. In the previous restitution my lawyer took full responsibility, saying that he had made an error while noting the date in his diary. Restitution was allowed. On the date previous to my suit getting dismissed the 2nd time, I was not present in Court but my lawyer was. After that I could not contact him at all, I even went to his house. My lawyer had fallen ill and had been taken out of town for treatment. His cell phone was also not working. He's willing to give an affidavit of the same. I already owe him a debt of gratitude and don't want to put him in an embarrassing position, moreso if its going to be a fruitless exercise. So what are the chances of my case getting restored?
Oh! Is a date fixed for filing evidence on affidavit a hearing?
Kirti Kar Tripathi (Expert) 27 July 2011
You can file second restoration application. It is settled position of law the the past conduct of the party is irrelevant for recalling of Ex-parte order/ or restoration of case. If the party is able to show sufficient cause for his non appearance on the date on which, the case was dismissed/or proceeded Ex-parte, the Court is under obligation to restore the suit or recall the order. See citation (C.P.Srivastava Vs R. K. Raizada (2000) 3 SCC 54) in this regard.
Querist : Anonymous (Querist) 27 July 2011
Thank you Tripathi sir.


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