IN THE HIGH COURT OF DELHI AT NEW DELHI
Introduction
The procedural landscape of civil litigation is often fraught with technical hurdles, where a single misstep in diary management can lead to the dismissal of a suit, potentially extinguishing substantive rights. The exercise of judicial discretion in such scenarios, particularly under Order IX Rule 9 of the Code of Civil Procedure, 1908 (CPC), becomes a critical junction between inflexible procedure and substantive justice. The judgment of the Delhi High Court in Naresh Sukhdev Sindhe v. Seema Baweja & Anr., delivered by Hon’ble Ms. Justice Chandrasekharan Sudha, offers a clear exposition on how courts should approach applications for restoration of suits dismissed for default, especially when non-appearance is attributed to clashing court dates. This analysis delves into the Court’s reasoning, underscoring the principles that guide the determination of “sufficient cause” and the condonation of delay in such restorative proceedings.
Factual Matrix and Procedural History
The appellant, Naresh Sukhdev Sindhe (the plaintiff), filed a civil suit for declaration and injunction. The suit was listed for arguments on the issue of maintainability on 19.10.2016. On that date, neither the plaintiff nor his counsel was present before the learned Additional District Judge, West Delhi, Tis Hazari Courts. Despite repeated calls, there was no representation, leading the trial court to dismiss the suit for non-prosecution vide order dated 19.10.2016.
Subsequently, the plaintiff filed an application for restoration of the suit under Order IX Rule 9 CPC, coupled with an application for condonation of delay in filing the said restoration application. The plaintiff’s explanation was that on the same date, i.e., 19.10.2016, he was required to be present in a criminal proceeding under Section 138 of the Negotiable Instruments Act, 1881, which had been instituted against him by defendant no. 1 in the civil suit. This simultaneous listing, he contended, prevented his appearance in the civil court.
The trial court, however, vide order dated 28.08.2017, dismissed both applications. It held that the plaintiff was negligent and had failed to satisfactorily explain the delay. Aggrieved by the orders dated 19.10.2016 (dismissal) and 28.08.2017 (rejection of restoration), the plaintiff filed the present appeal under Section 104 read with Order XLIII Rule 1 CPC.
Contours of the Legal Debate
The appeal centered on a narrow but significant procedural issue: Did the plaintiff demonstrate “sufficient cause” for his non-appearance on the date of hearing to warrant the restoration of his suit under Order IX Rule 9 CPC? Furthermore, was the delay in filing the restoration application properly explained to merit condonation?
The arguments presented a classic tussle between the necessity for procedural discipline and the need to accommodate genuine, unforeseen difficulties faced by litigants.
Submissions of the Parties
For the Appellant/Plaintiff:
1. Simultaneous
Listing: The primary contention was that the civil suit and the NI Act
proceedings, both involving the same parties, were coincidentally listed on the
same date, 19.10.2016.
2. Bona Fide Conduct:
The plaintiff emphasized that apprehending this clash, he had proactively moved
an application on 06.09.2016—well over a month before the hearing date—seeking
exemption from personal appearance in the civil suit. This, he argued,
demonstrated his bona fides and negated any allegation of negligence or wilful
default.
3. Constrained
Choice: Given the penal consequences associated with non-appearance in criminal
proceedings under Section 138 NI Act, the plaintiff and his counsel were
constrained to prioritize their presence before the Metropolitan Magistrate’s
court.
4. Past Conduct: It
was submitted that the plaintiff had been diligent in the past, having appeared
on previous hearing dates (16.07.2016, 06.08.2016, and 26.08.2016). The default
on a single date was neither wilful nor deliberate but a result of
circumstances beyond his control and a lapse by his erstwhile counsel.
5. Prejudice: The
appellant argued that restoring the suit would cause no prejudice to the
defendants, whereas its dismissal for default would permanently foreclose
adjudication on merits.
For the Respondents/Defendants:
1. Vigilance
Expected: The respondents supported the trial court’s orders, arguing that a
litigant cannot routinely take shelter behind the alleged lapse of his counsel.
Both the party and the counsel are expected to remain vigilant about court
dates.
2. Insufficient
Cause: It was contended that the plaintiff failed to show “sufficient cause.”
Even if he was required to be present before the Magistrate in the morning, the
Tis Hazari Courts complex houses both the Magistrate’s court and the civil
court. The plaintiff had ample time to appear before the civil court later in
the day. His complete absence throughout indicated negligence.
3. Lack of
Explanation: The respondents endorsed the trial court’s finding that the delay
in filing the restoration application was not satisfactorily explained.
Court’s Analysis and Findings
1. Examination of “Sufficient Cause” under Order IX Rule 9 CPC
The Court, at the outset, identified the principal issue: whether the plaintiff showed “sufficient cause” for non-appearance. The term “sufficient cause” is not defined in the CPC and must be construed liberally to advance substantial justice. The Court’s analysis was grounded in a factual inquiry into the plaintiff’s conduct.
1. Undisputed Fact of Clashing Dates: The Court first noted an undisputed fact: on 19.10.2016, the plaintiff was physically present within the Tis Hazari Courts complex in connection with the NI Act proceedings filed by defendant no. 1. The record corroborated that both matters were indeed listed on the same date.
2. Verification from
NI Act Proceedings: Significantly, the Court perused the order dated 19.10.2016
from the connected criminal case (CC No. 2732/1). This order confirmed that the
plaintiff was present before the Metropolitan Magistrate in the forenoon, and
the matter was adjourned to 04.01.2017. This documentary evidence substantiated
the plaintiff’s assertion that he was legitimately engaged before another court
on the relevant date.
3. Proactive
Application for Exemption: A critical factor in the Court’s assessment was the
plaintiff’s conduct prior to the hearing date. The record clearly showed that
the plaintiff, foreseeing the difficulty, had filed an application for
exemption from personal appearance on 06.09.2016. The Court held that this act
“demonstrates the bona fide conduct of the plaintiff.” It showed a proactive
attempt to address the impending clash rather than a careless disregard for the
proceedings.
4. Rejection of
“Ample Time” Argument: The Court implicitly rejected the respondents’ argument
that the plaintiff had ample time to appear later in the day. The judgment
acknowledges the practical reality of litigant anxiety and the prioritization
of a criminal matter with potential penal consequences. The plaintiff’s
explanation was found to be reasonable in the given context.
5. Distinguishing
Negligence from Bona Fide Difficulty: The trial court had categorized the
non-appearance as negligence. The High Court, reviewing the facts, drew a
distinction. Negligence implies a lack of care or attention that should have
been exercised. Here, the plaintiff had shown care by filing the exemption
application. His absence was not due to forgetfulness or indifference but was a
compelled choice arising from a genuine clash of court dates—a situation
recognized as a valid “sufficient cause” in jurisprudence.
2. Scrutiny of Delay in Filing the Restoration Application
Order IX Rule 9 mandates that an application for restoration must be filed within 30 days from the date of dismissal. The suit was dismissed on 19.10.2016. The restoration application was filed on 19.12.2016, which was beyond the 30-day period, necessitating an application for condonation of delay.
The plaintiff explained the delay as follows:
a. He was unable to
immediately contact his erstwhile counsel to ascertain the status after
19.10.2016.
b. Upon learning
from the defendant’s counsel about the dismissal, he applied for certified
copies of the dismissal order on 25.10.2016.
c. He received the
certified copies on 05.11.2016.
d. Thereafter, he
sought assistance from the Legal Aid Cell for representation, and the
restoration application was filed through the legal aid counsel.
The Court found this sequence of events to be a satisfactory explanation for the delay. The period was not inordinate (less than two months from dismissal). The steps taken—applying for copies and engaging legal aid—were indicative of a litigant pursuing his remedy, albeit with some procedural lag, which is not uncommon. The Court held that in these circumstances, the “delay cannot be termed inordinate or unexplained.”
3. The Overarching Principle: Justice on Merits vs. Technical Default
While not explicitly stated in a separate paragraph, the underlying principle guiding the Court’s decision is evident. Courts are increasingly inclined to provide an opportunity for a hearing on merits unless the default is deliberate, contumacious, or indicative of an abuse of process. The dismissal of a suit for default is a draconian step that terminates proceedings without adjudication. Restoration provisions exist as a safety valve to prevent miscarriage of justice due to technical or bona fide lapses.
In this case, the plaintiff’s prior conduct (regular appearances, exemption application), the bona fide reason for absence (clashing court dates verified by record), and the absence of any demonstrated prejudice to the defendants tilted the scales heavily in favor of restoration. The Court’s intervention rectified what it perceived as an overly rigid application of procedure by the trial court, which failed to give due weight to the plaintiff’s proactive and bona fide conduct.
Conclusion and Final Ruling
2. Documentary
Corroboration is Crucial: The plaintiff’s case was bolstered by the order sheet
from the NI Act proceedings, which proved his presence elsewhere. When alleging
a clash of dates, practitioners should always procure and file the proceeding
sheet or order from the other court as annexure to the restoration application.
3. “Sufficient Cause”
is Interpreted Liberally: Courts recognize the practical challenges faced by
litigants, including clashing dates in an overburdened system. A bona fide
explanation, supported by evidence, will often meet the threshold of
“sufficient cause,” even if another course of action (like appearing later) was
theoretically possible.
4. Delay in
Restoration Applications: Short delays in filing restoration applications,
especially when explained by steps like obtaining certified copies or arranging
for new counsel (particularly through legal aid), are generally viewed with
indulgence if the underlying cause for default is found to be sufficient.
5. Duty Beyond Citing
Counsel’s Lapse: While a counsel’s lapse can be a factor, the judgment implies
that litigants are also expected to show personal diligence. The plaintiff here
did not merely blame his counsel; he showed his own proactive step (exemption
application) and his subsequent efforts (applying for copies, approaching legal
aid).
6. Strategic
Consideration in Multi-Forum Litigation: When involved in parallel proceedings
(civil/criminal) between the same parties, practitioners must meticulously
track dates. If a clash is anticipated, a proactive application for adjournment
or exemption in one forum, citing the compelling engagement in the other, is a
prudent strategy.
The judgment in Naresh Sukhdev Sindhe v. Seema Baweja & Anr. reinforces a pragmatic and justice-oriented approach to procedural defaults. It underscores that the doors of justice should not be bolted shut due to a bona fide and reasonably explained absence, particularly when the litigant has otherwise shown respect for the judicial process. For the legal profession, it serves as a reminder that while procedural rules are the framework of justice, their application must be tempered with reason to serve the ultimate end of adjudicating rights on merits.
CHANDRASEKHARAN SUDHA (JUDGE)
DECEMBER 05, 2025
0 Comments