IN THE HIGH COURT OF DELHI AT NEW DELHI 
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   CS(OS) 1221/2005  
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 MR.L.K.KAUL 
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 ..... Plaintiff 
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 Through: M/s Ashish Kumar and Ritu Raj, Advocates 
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 versus 
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 SH. PRADEEP KUMAR KHANN (HUF)AND ORS. AC+ 
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 ..... Defendant 
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 Through: Mr. Yakesh Anand, Advocate with Ms. Sonam Anand, Advocate for 
 defendant Nos. 1 to 4. 
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 Mr. Sanjay Jain, Sr. Advocate with Mr. M.S.Vinaik, Advocate for D- 
 5. 
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 CORAM: 
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 HON'BLE MR. JUSTICE VIPIN SANGHI 
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 O R D E R 
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  05.09.2013 
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 I.A. Nos. 8587/2011(for restoration U/O 9 Rule 9  CPC) and I.A. No. 
 8599/2011(for condonation of 548 days? delay in moving the first 
 application) 
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 The plaintiff has filed these applications.  A few relevant facts 
 may be noted.  The last time the plaintiff appeared in the suit before 
 the Court through counsel was on 07.03.2008.  The matter was adjourned 
 thereafter from time to time but the plaintiff did not appear. 
 Ultimately, the suit was dismissed in default on 11.09.2009 on account of 
 non-appearance on behalf of the plaintiff.  The restoration application 
 was moved with delay of 548 days on 11.03.2011.  The defendants have 
 filed their reply opposing the application. 
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 It is not in dispute that the plaintiff became aware of the 
 dismissal of the suit on 22.10.2010.  The present application was filed 
 nearly 5 months after becoming aware of the dismissal of the suit in 
 default.  The explanation furnished by the plaintiff in the application 
 for his non-appearance which led to dismissal of the suit, and also for 
 the extreme delay in filing the application is that the plaintiff was 
 suffering from Alzheimer disease.  It is claimed that the plaintiff could 
 not give necessary instructions to his counsel which led to non- 
 appearance before this Court since 11.07.2008; dismissal of the suit in 
 default; and the delay in filing the application for restoration.  The 
 plaintiff has placed on record medical prescriptions and certificate 
 dated 27.01.2011 and 06.01.2011 to show that the plaintiff was suffering 
 from Alzheimer disease. 
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 At this stage itself, I may notice that these certificates are of 
 January 2011, whereas the suit was dismissed in default about one and a 
 half years earlier i.e. on 11.09.2009.  Non-appearance of the plaintiff 
 started even earlier on 11.07.2008.  It appears that when this 
 application was earlier heard by this Court on 04.09.2012, the absence of 
 any medical record of the plaintiff for the period in question was 
 noticed, and the plaintiff sought time to place on record medical papers 
 of the plaintiff concerning his ailment for the relevant period.  No 
 further documents have been filed by the plaintiff since then.  It is 
 stated by learned counsel for the plaintiff that Mr. L.K.Kaul passed away 
 on 25.10.2011 and, therefore, his medical record could not be produced. 
 In my view, this is no explanation.  Merely because the plaintiff has 
 passed away, it does not mean that his legal representatives would not be 
 possessed of the medical records. 
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 The explanation furnished by the plaintiff i.e. of the plaintiff 
 suffering from Alzheimer disease, even otherwise, does not inspire 
 confidence.  Pertinently, the plaintiff kept on pursuing the other legal 
 remedies during the entire period, pertaining to the same property.  In 
 CS(OS) No. 425/1993-where the plaintiff is a party, a receiver was 
 appointed in respect of the suit property. 
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 The plaintiff herein preferred FAO(OS) No. 400/07 before the 
 Division Bench.  This FAO(OS) was dismissed by the Division Bench along 
 with two other appeals on 20.02.2009.    After the dismissal of the 
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 aforesaid FAO(OS) No. 400/2007, the plaintiff preferred a Special Leave Petition before the Supreme Court being SLP(C) No. 11859/2009.  He 
 continued to pursue the said petition through counsel.  In the SLP 
 proceedings, the defendants herein brought to the notice of the Supreme 
 Court the factum of dismissal of the present suit in default on 
 11.09.2009.  The plaintiff claims to have learnt of the dismissal of the 
 suit from the said disclosure made by the defendant herein on 22.10.2010. 
 The said Special Leave Petition was pending, and being pursued by the 
 plaintiff and his representatives thereafter till recently-when the said 
 Special Leave Petition was also dismissed on 30.08.2013. 
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 Therefore, the so called medical ailments suffered by the plaintiff 
 did not come in the way of plaintiff and his legal representatives 
 pursuing other legal proceedings.   Pertinently, even the present 
 application has been filed by the legal representatives of the plaintiff 
 at their own sweet will and in their own time.  Even if it were to be 
 accepted that the plaintiff and his legal representatives became aware of 
 the dismissal of the suit in default on 22.10.2010 and not earlier-for 
 which there is no explanation, the present application has been filed 
 after expiry of nearly 5 months.  Had there been any sense of urgency, 
 the application would have been moved immediately after 22.10.2010 which 
 has not been done.  Therefore, I am not at all satisfied that the 
 plaintiff has been able to explain the enormous delay of 548 days in 
 moving the application for restoration let alone the explanation 
 furnished by the plaintiff for non-appearance before the Court in the 
 present suit between 29.01.2008 and 11.09.2009 when the suit was 
 dismissed in default.  The applications are accordingly dismissed. 
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 VIPIN SANGHI, J 
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 SEPTEMBER 05, 2013 
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