As per Order IX Rule 9 of Code of Civil Procedure, (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Sample Format of Affidavit for Application to restore dismissed suit under Order IX Rule 9 CPC is as under.
IN THE COURT OF _________________
C. M. RESTORATION APPLICATION NO ____ OF 20__
IN
ORIGINAL SUIT NO____ OF 20___
IN THE MATTER OF:
MR. ____________ APPLICANT/
APPELLANT
VERSUS
MR._____________
OPPOSITE PARTY / DEFENDANT
AFFIDAVIT
I_______________ , aged _____ years, S/o _____________________, Resident of __________________ ________________, do hereby solemnly affirm and declare as under:-
1. I am the respondent in the Restoration Application referred to above and the defendant in the suit. I am well conversant with the facts and circumstances of the present case and stand competent to swear to this affidavit.
2. The averments in para 2 to para 5 of the affidavit accompanying the restoration application, being statements of facts, deserve no comment.
3. The statements made in para 5 onwards, save and except those, which have been specifically admitted hereunder, are denied as untrue and incorrect.
4. Notice regarding the posting of the case was duly notified in the Court diary and when the case had been listed for trial it was published in the list, which was exhibited outside the Court hall. Further, one copy of the notice had even been affixed in the office of the Association of Advocates of which the counsel for the applicant is a member. Therefore, the statement that the applicant or his counsel had no knowledge of the posting of the case or its inclusion in the special list for trial is absolutely false and incorrect and hence denied.
5. The kind attention of this Hon'ble Court may also be drawn to the fact that just one week before the date of posting of the case for trial, there was a case between the counsel of the defendant and my counsel. At that point in time, this Hon'ble Court had specifically asked both the counsels, as to, how much time would be taken by them in conducting the trial and both the counsels had given their respective replies to this Hon'ble Court. Therefore, it cannot, in any event, be believed that the counsel for the defendant was unaware of the date of posting of the case.
6. In view of the aforementioned facts, it is more than abundantly clear that the contents of the affidavit are absolutely false and fabricated, making the deponent thereof liable to be penalized for having sworn to untrue statements.
7. The above stated facts lay bare the fact of default and negligence on the part of the defendant and his counsel, which cannot be condoned in any event.
8. It is, therefore, just and necessary that this Hon'ble Court may be pleased to reject the application for restoration with compensatory costs to me.
DEPONENT
VERIFICATION
I, ____________ the Deponent above named do hereby verify that the contents of the above
Affidavit are true and correct to my personal knowledge and nothing material has
been concealed or falsely stated.
Verified at New Delhi on this day ___of _________20__.
DEPONENT
Order IX Rule 9 "Decree against plaintiff by default bars fresh suit"
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall
be precluded from bringing a fresh suit in respect of the same cause of action.
But he may apply for an order to set the dismissal aside, and if he satisfies
the Court that there was sufficient cause for his non-appearance when the suit
was called on for hearing, the Court shall make an order setting aside the
dismissal upon such terms as to costs or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has
been served on the opposite party.
AFFIDAVIT FORMATS
Affidavit, Maintenance & Divorce, Delhi High Kusum Sharma v. Mahinder Kumar Sharma
Affidavit, Petition for Judicial Separation under Section 10 of Hindu Marriage, Act
Affidavit to be filed with Divorce petition under Section 13(1) of Hindu Marriage Act
Affidavit, Section 23(2) of The Protection of Women from Domestic Violence Act, 2005
Affidavit, Evidence by way of Affidavit, Complaint u/s 138, Negotiable Instruments Act
Affidavit under Motor Vehicles Act in a Motor Accident Petition Appeal
Affidavit to Register Marriage under Hindu Marriage Act
Affidavit under Section 2 of Dissolution of Muslim marriage Act
Affidavit in a Civil Revision Petition under section 115 of CPC and for stay against order
Evidence by way of Affidavit during Trial under Section 17 of Consumer Protection Act
Affidavit for Restoration Petition u/s 151 of CPC for to restore Dismissed Application
Affidavit, Application to delete name of Party from Petition order 1 Rule 10(2) of CPC
Affidavit for Petition for maintenance under section 125 CrPC
Affidavit for production of documents in court which not produced earlier
Affidavit to declare legal heirs of deceased employee to claim PF and Super Annuation
Affidavit for Application to arrest Defendant before Judgment
Affidavit for Application to change name in the Education Certificate
Affidavit with Application for substituted service of summon order V Rule 20 CPC
Affidavit with Application for Registration of Will after death of Testator
Affidavit to Application objecting notice to vacate premises occupied the by the landlord
Affidavit for Application to issue Duplicate Driving License from Transport Authority
Affidavit u/s 13(1)(i)(ib) of Hindu Marriage Act for Divorce Petition, Desertion 2+ years
Affidavit for Divorce Petition Section 13(1)(i) of Hindu Marriage Act, Ground of Adultery
Affidavit, Mutual Divorce Petition u/s 13B of HMA, Dissolution of Marriage, First Motion
Affidavit for Second Motion of Mutual Consent Divorce Petition u/s 13B(1) of HMA
Affidavit for Petition u/s 11 of Hindu Marriage Act for Decree of Nullity of Marriage
Affidavit for Petition for Maintenance under Section 24 of Hindu Marriage Act
Affidavit to Petition for Judicial Separation under Section 10 of Hindu Marriage Act
Affidavit to Petition Probate under Section 276 of Indian Succession Act
Affidavit to Recall ex- parte order and set aside it passed in the absence of Defendant
Evidence by way of Affidavit in a Suit for Dissolution of Partnership Firm
Affidavit for IA seeking Security from Defendant in a Recovery Suit under order XXXVII
Affidavit for Consumer Complaint u/s 12 of Consumer Protection Act to District Forum
Affidavit for Substitution Application, death of a Party in a Suit, order XXII Rule 3 CPC
Affidavit for Application to arrest, detain in Prison Judgment Debtor as per order XXI Rule 37 CPC
Affidavit to produce additional evidence in an appeal, Order XLI Rule 27 of Code of Civil Procedure
Affidavit to Anticipatory bail application under section 438 of Code of Criminal Procedure
Affidavit for Bail Application under section 437 of Code of Criminal Procedure
Affidavit for issue of Death Certificate after registration of death
Affidavit for Writ of Certiorari Writ Petition under Article 226 and 227 in High Court
Affidavit for Writ of Mandamus under Article 226 of the Constitution to be filed in High Court
Affidavit for Writ of Quo Warranto under Article 226 of the Constitution to be filed in High Court
Affidavit for Writ of Habeas Corpus under Article 226 of the Constitution to be filed in High Court