Saji varghese (manager) 13 March 2011

Restoration of suit

I was pursuing a case agaist a propriety fim with four propreitors.There was an amendment in petition and same was granted .While the summons were recieved by three of them ,the fourth summon was returned back saying person not available.meanwhile the other three attended and filed their replies.For the fourth defended we asked for a paper publication and same was granted.unfortunately because of a medical emergency the same could not be carried out and on the date an extension for a weeks time was sought.But the court dismmised tthe application and infact dismmised the suit against all four defendent,.Can a court dissmiss case against other three when they have replied and contested? Can the suit be restorted.Pls let me have your advice.

Thanks

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2 Replies

Jebaraj Jasper Jacob (Advocate) 14 March 2011

The court is enpowered to dismiss the suit for non-compliance of the order of substituted service(paper publication) under order 9 rule 5 of the code of civil procedure as against only the defendant to whom summon is not paid by the plaintiff. There is no specific provision to restore the suit if it is dismissed only agianst a particular defendant. But here the court has dismissed the suit as against all the four defendants. Hence the suit can be restored by filing an application for restoration with the period of limitation by puttingforth the reason cited by you.

manoj r. dubey (prop.) 14 March 2011

the suit can be restored by taking out a notice of motion for restoration. the motion should content the reason for restoration even if that motion is dismissied than challenge that order in the high court in the form of appeal from order any help than contact 9892115025 from mumbai