IN THE COURT OF SENIOR CIVIL JUDGE
Suit No………….
Misc. C. Appl. No……………..
AB ………………. Plaintiff
Versus
CD ………………. Defendant
Application for Restoration of an Appeal under Order 9 Rule 7 with Section 151 of C.P.C.
Sir,
The applicant/appellant above named states most respectfully as follows:-
(1) The applicant had filed the appeal no……………/……….. against the opponent/ respondent herein on various grounds.
(2) The applicant submits that the Hon’ble District Judge was pleased to dismiss the said appeal for default of the appellant/ applicant and default of the Advocate by its order dated……….. .
(3) The applicant submits that on the last date of hearing, on the application of the defendant seeking adjournment, the Hon’ble Court while granting the application fixed the next date as……….date. The next date of hearing was informed by the Hon’ble court to the parties
and was mentioned below Ex…………….by the Hon’ble Court.
(4) The applicant/ appellant submits that however in the cause list the next date for hearing is stated as………….. .
(5) The applicant and his advocate recorded the date informed by the Hon’ble Court in the open court and mentioned below Ex…………. Thus there was no need to refer to cause list. As per cause list date the matter was called out on……………date and therefore this applicant is not present. The matter was dismissed by the Hon’ble Court.
(6) The applicant/ appellant had no knowledge about the date in the cause list and his absence is not willful.
(7) The applicant/ appellant submits that due to the two dates given in the matter for not fault of this applicant/appellant the appeal is dismissed for default.
(8) The applicant/ appellant submits that great loss and injustice will be caused to this applicant if the appeal is not restored back to its original file.
(9) The applicant/ appellant submits that no hardship or inconvenience will be caused to the respondent/ opponent if the appeal is restored to its original file.
In view of the aforementioned facts the applicant most respectfully prays:-
(a) That the appeal No………………. be be restored back to its original file.
(b) Pass any other just and equitable order as deemed fit in the interest of justice.
An affidavit in support is filed herewith.
Applicant/Appellant
Through
Advocate
Place:- Date:-
When an application for setting aside ex parte decree is made by defendant, the court should consider whether the defendant was prevented by sufficient cause from appearing before the court when suit was called out for hearing.
If the court finds that there was sufficient cause for non-appearance, it is bound to be set aside the decree. If sufficient cause is not shown, ex parte decree cannot be set aside.
An order setting aside ex parte decree is judicial, it must be supported by reasons.
Sufficient cause is a question of fact. Each case has to be decided on the facts and in the circumstances before the court and not on precedents.
Material date for deciding sufficient cause for non-appearance by the defendant is the date on which ex parte decree was passed and not his previous negligence or pas defaults.