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__
ORIGINAL SUIT NO____ OF 20___
IN THE MATTER OF:
MR. ____________ APPLICANT/ APPELLANT
MR._____________ OPPOSITE PARTY / DEFENDANT
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.
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__.
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.