Application for restoration of the Suit
In the Court of Small Causes at Bombay
Miscellaneous Application No. of 2002
In
RAE & R Suit No. 7/794 of 1996
ABC) … Plaintiff.
Versus
BCD) … Defendant.
I, Gyanprakash Shukla, the plaintiff abovenamed, do hereby state, on solemn affirmation, as under:
- I say that the above suit was kept for exparte hearing before this Honourable Court on 19.01.2002 at 11 am. I say that as summons were served and as neither the defendant filed their written statement nor the defendant remained present before the court, the matter was kept for exparte hearing on 19.01.2002.
- I say that since 18.01.2002 I had a fever and therefore I contacted my present advocate’s office and it was informed to me that my advocate was out of station due to sudden of his uncle. I found Mr. Harish Mishra, junior of my advocate on phone and I informed him that as I am suffering from high fever I will not be in a position to attend the court on 19.01.2002 and I requested Harish Mishra to make a proper arrangement to appear before this Honourable Court on that day i.e. on 19.01.2002.
- I say that said B Mishra, Junior Advocate of my Advocate assured me that he will go to the court and will make proper application in view of my illness. In the evening on 19.01.2002 when I contacted said B Mishra, he told me that in view of some urgent matters in the Small Cause Court at Kalbadevi, Mumbai, he could not come to this Honourable Court on 19.01.2002 and therefore nobody remained present at the time when the matter was called out and thus the same was dismissed for default.
- I say that in view of my ill health I could not remain present in the court on 19.01.2002. I say that I totally relied upon the assurance given to me by the junior advocate of my advocate B Mishra that he will attend the matter but unfortunately even he could not come to this Honourable Court in view of some urgent matters in Small Cause Court at Kalbadevi, Mumbai, and therefore nobody remained present and thus the matter was dismissed.
- I say that thereafter I requested the said B Mishra to inform me about as to what happened on 19.01.2002. I say that on 23.01.2002 my advocate came from his native place and on 24.01.2002 my advocate send his junior advocate Harish Mishra to find out as to what happened on 19.01.2002 and on seeing the board of this Honourable Court of 19.01.2002, it was noticed that the matter was called out and dismissed.
- I say that in view of my aforesaid illness and in view of the absence of my advocate, the matter could not be attended on 19.01.2002 and the matter was dismissed. I say that the matter is kept for exparte hearing and I do want to take decree in this Honourable Court as the defendant is not responding. I say that due to unavoidable circumstances I could not remain present in the court and in view of the death of my advocate’s uncle, he also could not remain present and the matter went unattended and was subsequently dismissed.
- I say that the aforesaid cause is sufficient cause of setting aside the order of dismissal dated 19.01.2002. I say that no prejudice will be caused to the defendant if the order of dismissal of the suit dated 19.01.2002 is set aside and the suit be restored to file on its original stage.
- I say that if the said order of dismissal dated 19.01.2002 is not set aside and if the suit is not restored, irreparable loss and great injustice will be caused to me. I say that even balance of convenience also lies in my favour. I say that no prejudice will be caused to the defendant if the aforesaid order is passed in my favour.
- I, therefore, pray:
- That the order of dismissal passed in RAE & R Suit No.337/794 of 1996 dated 19.01.2002 be set aside and the said suit be restored to be decided on merit;
- That such other and further reliefs be granted to the plaintiff as this Honourable Court deem fit and proper;
Solemnly affirmed at Mumbai on……………..