Restoration of a dismissed application

Since the order IX Rule 9 says of dismissal on defalt i.e. for non appearance, your case does not come under this. From your eleboration it appeas it was the fault of the registry which you had no control over, so I think a perition under Order XLVII Rule 1(a)  read with 151 CPC  may be preferred for review of the order enclosing the certified copy of the document of the Nazir office as well as other details of the registry.

thnak u Mr.Surjit Sing . I appreuiate gratefully  your gesture of recrording a reply to the topic above.  I wanted to get some  different ideas. 

Anent the Order XLII (1), is it possible to let me know  how and why do u consider the order passed didsmisisng the application u/O XXII R 4 falls under Order XLVI(I (1( (a) which covers decree and orders from which an appeal is allowed.

In this case I verifedi under OrderXLIII providing for appeal from orders and wha is covered is only orders coverd in resepct of Orders undre XXII are orders passed under  rule 9 oadn 10 of f XXIi . 

So it is not proepr to use sub clause (b) of  R 1  of  Order XLVII?

clairify please?  

thank u Sir.

Yes you are right, it should be clause (b) instead of clause (a)  because against the order no appeal is allowed appeal is allowed only against order under Rule 9 and 10 of Order XXII.

may add one more msessage,mr.  Surjit Sing?  My affidavit is ready  to be filed with an applicartion  u/S.151 of CPC. for recall the illegal order and restore the application dismissed on 07-11-2012 ( that is, the application filed  u/O XXII R 4 of CPC r/w S.151 to imp[ead the LRs of  a deceased defendant )  will this od Surjit sing? Why at all invoke  more Ordre?   :

In the petition to be field u.S 151 my prayer is:" For the reason stated in the accompanying affidavit, the second petitioner / second plaintiff herein prays the Honble Court to be pleased to set aside the order passed by the Court on 07-11-2012 for the alleged non-payment of batta for service of notice of the application in I.A.No.692 of 2012 to the legal representatives of the deceased 9^th defendant / proposed defendants  and restore the application in I.A.No.692 of 201 on the file of this Honble Court and render justice. "

The supportign affidavirt reads: 

1.  I am the petitioner herein and 2^nd plaintiff in the above suit.  I am aware of all            facts  and circumstances of the case. 

2. Following the demise of my cousin brother/9^th defendant Thiru. xxxxxxxxx surviving  legal heirs , that is his wife xxxxxxxxxxxxi , his first  daughter xxxxxxxxx and the second daughter xxxxxxxx, had to be brought on record.
3. Hence I filed  the application in I.A.No,.692 of  2012 under Order XXII Rule 4 Read with 151 of CPC on 16.07.2012. Bata had been paid for service of  notice fo this  application notices  were duly served s ereved to all three proposed parties in PS N0 25325, 25326 and 25327 and service proof had been filed into this Honble Court by  the Nazer office. 
4. . The bench clerk of this Honble Court   has signed  the concerned register of the nazer office on 30.10.2012 and on 01.11.2012 in acknowledgement of receipt in this Hobnle court of service proof of notices to the aforesaid legal heirs of the deceased 9^th defendant . 
5. . On 29-10-2012 this Court was pleased to adjourn the hearing of the said application since service proof had not been received. The application in IA No 692 /2012 was directed to be called on 07-11-2012. 
6. . On 07-11-2012,  despite  proofs of service of notices having been received by this Honble Court on 30-10-2012 and on 01-011-2012, as explained  above , and by an oversight in verifying the said fact, this Honble Court was pleased  to dismiss theapplication which was not in accordance  with law and facts on record.
7. . There is no  default whatsoever by the petitioner. The said order dated  07-11-2012  needs to be recalled . There is no specific provision in the CPC to meet the situation and hence I have availed the inherent power of this Court un/S 151 of CPC to meet the ends  of justice.       It is most humbly prayed therefore that this Honble Court  may be pleased  to recallthe  order of dismissal  passed on 07.11.2012 in I.A.No 692 of 2012 in O.S.No.89of  2005 and restore the said  application on the file and proceed to hear the same  and render justice.Solmenly affirmed and signed the above in  my presence on this 20^{th h} day of November 2012 at xxxxxxxxxxx                                                                                                                                                          Advocate
8.  

sorry..the prayer in thepetition  is : "For the reason stated in the accompanying affidavit, the second petitioner / second plaintiff herein prays the Honble Court to be pleased to recall  the  illegal order passed by this Court on 07-11-2012 for the alleged non-payment of batta for service of notice of the application in I.A.No.692 of 2012 to the legal representatives of the deceased 9^th defendant / proposed defendants  and restore the application in I.A.No.692 of 201 on the file of this Honble Court , hear and dispose the same in accordance with law  and facts of  the case and render justice. "

Please give more stress to paragraph 6 regarding the proof of service of notice, because this is the main ground on which your review petition will be allowed.

If you do mind kindly add  the folwing to para 6 "The plaintiff was all along following the required formalities as regard service of notice,  which was duly acknowledged by the registryof the this Hon'ble Court.  The plaintiff humbly submits that the proof of service of notice on the representatives of the defendant was not  produced along with the record when the case as taken up and as such unfortunatley the court has to pass the order dismsising the petiton.

6A. That the plaintiff was all along persuing the instant suit with utmost sincerity and in the event of not reviewing the order dated 7.11.2012 passed in the instant suit the plaintiff would suffer irreparable loss and injury."

Annex the certified copy of the proof of service of notice alongwith your petition. On the day when your application is taken up, before the case is called for ensure that the proof of service is with the record of the case so that you can convince the judge about the service of notice. Best of luck.

Please remove the word "illegal" from the prayer because it will give adverse impression. You can use it when go for appeal against the ordfer.

ddear Mr. Surjit Sings , thank  u  for the continued  interest  and suggestions.May i say that  your sugegestion  can be modfied to be  '

"The2nd  pettiioner  has been thus all along adherd to the requisite formalities in  regard to service of notice,  as explaiend above and as found in the reords of the Nazer office  The 2nd pettioner  humbly submits that the proof of service of notice on the legal  representatives of the 9th defendant, though induputabley made  available to this Honble Court on and after 1st November  2012 ,has eldued the notice fo the Homnble Couirt when the I.A.No 692 of 2012 was taken up for hearing  on 07-11-2012. Consequently and unfortunately too, this Honble Court was pleased to pass the order of dismsiaal .

It is respectfully submitetd that if the erroneous order of dismisaal dated 07-11-2012 of the said application in I.A.No 692 of 2012 is not  recalled ,  the petitioner would  be put to  irreparable loss and injury.

yes go for it.

thank u dear mr.Surjit Sing. My sisncre  wishes to you, and all those  who followed this posting. 

P.Padmanaabhan,advocate at 12 noon on 16th Nov 2012

Mr.Surjit  Singh and other 88 viewers, 

I am pleased to recrod here that this afternoon, the Hon'ble IV th Addiitional  Distrrict and  Sessions Judge had no reservation to take on his file the  above  application praying  him to  recall his erroneous dismissal order passed on 07-11--2012 -12 in the application in I.A.No 692 of 2012 filed  u/O XXII Rule 4 for briinging on  record the LRs ofthe deceased defendant and to restore rthe said application on file .

After verifying the court rrcords  and satisfying hismelf that on  due payment  of batta, notiecs of the said application had been  served to the proposed  parties and proof had been received by the couirt,h he proceeded to forhiwth  pass order allowing the application  u/S151 . and ordered restoration of I.A.No 692 of 2012.  He further recrorded that since it was a court mistake no notice needed to be given  to respondents.

But I had given notice of  all ocounsels on record  for the respdondents. No notice for the propsoed  parties of this restoration application..

I thank u all. fpr being here.

. P.Padmanabahan,advocate.  at 04:30 P:M IST on 20th Nov 2012

best of luck for days to come,

dear thiru.Syrjit singh, thank u.  I did not r4da u in my other topic in https://www.lawyersclubindia.com/forum/Per-incuiam-order-of-the-high-court-51267.asp#.UKuHRuSE1ks. This memeo is still pending. 

It is about invoking per incuriam rule to object the proceedings of recalling the  witness DW 1  to mark certain letters relating to the wherebaout of the two Wills the sadi witness has to prove in the suit for partition . the sa,me suit  referred to above . U please go through  the aforesaid  topic and if you feel you can cointuribute there anythgin u r welcome. 

My application in I.A.No 692 of 2102 is posted  for counter and ntoice of hearing on 11-12-2012  . I am directed to give again private notice to the proposed parties  ( LR s of  the deceased  defendant) by then. 

we will be in touch 

P.Padmanaabhan 19:10 hrs IST on 20th Nov 2012 

I am sorry. for late addition. I.A.No.692/2012 has been allowed and I will be moving  on to file  an application U/o VI Rule 17 r/w S. 151 of CP . Will be back when Per incurium matter is taken  bvy the Honble tial l Court. 

P.Padmanaabhan at 09:38 PM IST on 30th Dec 12