Restoration of suit dismissed in default

Model format for general reference only. Not legal advice. Adapt to the facts and the court's current rules. Source: masterlegalwork.com

IN THE COURT OF [DESIGNATION OF THE PRESIDING OFFICER], [PLACE]

[CASE TYPE] No. ____ of 20__

Versus

Next date of hearing: [DATE]

APPLICATION UNDER ORDER IX RULE 9 READ WITH SECTION 151 CPC FOR RESTORATION OF THE SUIT DISMISSED IN DEFAULT ON [DATE]

Respectfully showeth:

1. That the above-noted suit was fixed for [STAGE] on [DATE] and was dismissed in default of appearance of the plaintiff [under Order IX Rule 8 CPC].
2. That the plaintiff and counsel could not appear on that date because [SUFFICIENT CAUSE — e.g. illness with medical record, wrong noting of the date, counsel's genuine reason].
3. That the non-appearance was neither intentional nor deliberate, and the plaintiff has always been diligent in pursuing the suit.
4. That this application is filed within thirty days of the order of dismissal [Article 122 of the Limitation Act, 1963].
5. That dismissal occurred on [date] under [exact rule and terms of order], when [both parties absent / defendant present and plaintiff absent / other situation]. The applicable restoration provision is selected accordingly, rather than assuming every dismissal falls under Order IX Rule 9.
6. That on the hearing date [ ] the applicant and counsel were unable to appear because [separate reasons and times], supported by [contemporary documents].
7. That the dismissal was learned of on [date], and steps thereafter were [dated chronology]. Limitation under the applicable article and any necessary condonation are calculated as [particulars].
8. That previous defaults, costs, compliance and the stage to be restored are [details]. The applicant offers [proportionate terms] and is ready to proceed on [task].

PRAYER

It is, therefore, respectfully prayed that the order dated [DATE] dismissing the suit in default may kindly be set aside, and the suit restored to its original number and stage.

IN THE COURT OF [DESIGNATION OF THE PRESIDING OFFICER], [PLACE]

[CASE TYPE] No. ____ of 20__

Versus

AFFIDAVIT

Affidavit of [NAME OF DEPONENT], [S/o / D/o / W/o] [NAME], aged about [__] years, resident of [FULL ADDRESS WITH PIN CODE].

I, the above-named deponent, do hereby solemnly affirm and declare as under:

1. That the deponent is competent to swear this affidavit and the accompanying [suit / petition / application] has been drafted by counsel on the deponent’s instructions. Its contents have been read over and explained in [LANGUAGE], understood by the deponent, and are incorporated as part and parcel of this affidavit; the factual statements are true to the deponent’s knowledge or identified records, and legal submissions are based on advice believed to be true.
2. That [no same or similar suit / petition / application on the same cause of action has been filed / the following prior or pending proceedings, outcomes and orders are fully disclosed: ___]. Nothing material has been concealed.

DEPONENT

VERIFICATION

Verified at [PLACE] on [DATE] that paragraphs 1 and 2 above are true and correct to my knowledge and identified records, with legal submissions based on advice believed true. Nothing material has been concealed.

DEPONENT

Note: To be sworn before an Oath Commissioner / Notary Public and stamped as required by the applicable rules.