APPLICATION UNDER ORDER IX, RULE 9, C.P.C. FOR RESTORATION OF SUIT DISMISSED FOR NON PROSECUTION

IN THE COURT OF SENIOR CIVIL JUDGE DADU

ABC S/o D.M. Cast      , R/o    Tehsil & District, Dadu.

…PETITIONER/PLAINTIFF

Vs.

FDA S/o M.D. Cast      , R/o    , Tehsil & District, Dadu.

…RESPONDENT

APPLICATION UNDER ORDER IX, RULE 9, C.P.C.

FOR RESTORATION OF SUIT DISMISSED FOR NON PROSECUTION

Respectfully Sheweth:

1)      That the captioned suit was pending in this Hon’ble Court and was fixed for report of the Handwriting Expert so and so, the same was dismissed for nonappearance of the plaintiff under O.IX, Rule 8, C.P.C.

2)      That due to inadvertent omission and misunderstanding the clerk of the counsel of the petitioner noted date of hearing instead of       .

3)      That due to this reason the correct date was not conveyed to the petitioner which led nonappearance of the petitioner before this Hon’ble Court.

4)      That the nonappearance of the petitioner or his counsel is not intentional but due to the misunderstanding of the wrong date noted in the diary of the counsel. Photocopy of the relevant page of the dairy of the counsel is placed at Annexure “A”.

5)      That the case was fixed for report of the handwriting Expert and the date so fixed was no date of hearing, the Court was not supposed to proceed with the case but only to receive the report of the handwriting expert.

6)      That the petitioner appeared on        the date recorded in the diary of the counsel and on inquiry it was revealed that the suit has been dismissed for non prosecution on the previous date i.e.                    

7)      That the becoming to know the factum of dismissal for non prosecution the petitioner has filed the application promptly without any delay.

8)      That nonappearance of the petitioner or his counsel is not intentional but due to misunderstanding as to the date of hearing.

9)      That if the suit is not restored to its original numbers the petitioner shall suffer irreparable loss. Law does require a lis to be adjudicate upon on merits rather that to be dismissed on mere technicalities, hence this petition.

It is therefore respectfully prayed that this Hon’ble Court may be pleased to accept this petition and be further pleased to restore the suit dismissed for Non-prosecution on its original number so as to be disposed on merits in accordance with law.

PETITIONER/PLAINTIFF

Through

Counsel

Verification:

Verified on oath at Dadu the 10^th of September, 2010 that the contents of Para No. 1-9 are true to the best of my knowledge and belief.

PETITIONER/PLAINTIFF

NOTE: AFFIDAVIT IN SUPPORT BE ALSO GIVEN.

REPLY TO APPLICATION UNDER IX, RULE 9, C.P.C.

FOR RESTORATION OF SUIT DISMISSED FOR NON PROSECUTION

            Preliminary objection:

1)      That the present petition is not competent it is not with in time.

2)      That the date as pronounced by the Court was written correctly in the presence of the respondent by the clerk of the counsel of the plaintiff.

3)      That the non prosecution of the case is intentional and deliberate.

ON MERITS:

1)      Admitted.

2)      Incorrect and denied.

3)      Incorrect and denied.

4)      Incorrect and denied.

5)      Admitted.

6)      Denied for want of knowledge.

7)      Incorrect and denied.

8)      Incorrect and denied.

9)      Incorrect and denied.

It is therefore respectfully prayer that this Hon’ble Court may be pleased to dismiss the petition with costs.

RESPONDENT/DEFENDANT

Through

Counsel

Verification:

Verified on oath at Dadu the 10^th of September, 2010 that the contents of Para No. 1-9 are true to the best of my knowledge and preliminary objections 1-3 to the best of my information and belief.

RESPONDENT/DEFENDANT