Deo Dutt Upadhyaya v. Sri Sanatan Dharm Siksha Samiti, Orai
1977-01-31
H.N.AGARWAL
body1977
DigiLaw.ai
JUDGMENT H.N. Agarwal, Member. - This is an application for restoration of revisions Nos. 173, 174 and 175 of 1974-75 district Jalaun, which were dismissed in default by this Court on May 20, 1976. 2. I have heard the learned counsels for both the parties and have gone through the record. 3. The revisions were fixed for hearing on May, 20, 1976. On that date the counsel for the opposite party. Shri Sanatan Dharm Siksha Prasar Samiti, was present, but neither the revisionist nor his counsel were present at the time of the hearing. Later on, an application for restoration was moved by the counsel for the revisionist in the afternoon the same day. The revisionist and his counsel also appeared in person before the Court the same afternoon. In these circumstances, the restoration of the revision would have been a simple matter but for the fact that it has been hotly contested on both sides. The learned counsels for both the sides have cited a number of rulings. I shall presently refer to some of them. First of all, I may observe that the notice of the date of hearing to the parties in the Board of Revenue is given in B.R. Form Nos. 301/302, 325/326, in which it is stated that the case is listed for hearing before the Court at 10.00 a.m. on the given date. This means that the parties are expected to reach the Court by 10.00 a.m. and to be present when the case is called. The intimation to the counsels for the parties is, however, given in B.R. Form No. 14, in which only the date of hearing is given without specifying the time. This would meet that a counsel is entitled to appear before the Court on the given date any time during the working hours which are from 10.00 a.m. to 5.00 p.m. In other words, if a counsel is unable to appear before the Court at 10.00 a.m. or at the time when the case is called, for any reason, but appears before the Court subsequently the same day before 5.00 p.m., there is good and sufficient cause for restoring the case if it has been dismissed in his absence in the meantime.
In the present case, the revisionist and his counsel might have failed to appear before the Court when the case was called either due to some misunderstanding or even due to negligence, but it is definite that both of them appeared before the Court the same day before the rising of the Court. It is quite possible that the counsel might have left the Court at 10.00 a.m. after instructing the revisionist to remain present in the Court, but the revisionist may have failed to follow his instructions and may have also gone out and not responded when the case was called but their subsequent appearance in the Court establishes that they were present on the date fixed for hearing. The question now arising is whether such a strict view of the provisions of law can be taken which may preclude restoration even when a party, who is absent when the suit is called for a hearing, subsequently appears before the Court. 4. The learned counsel for the opposite party in opposing the restoration application has referred to Arjun Singh v. Mohindra Kumar, AIR 1964 S.C. 993 , in which a learned Bench of the Supreme Court has observe as follows: "Before proceeding to deal with the arguments addressed to us by Mr. Setalvad, learned counsel for the appellant it would be convenient to mention a point, not seriously pressed before us, but which at earlier stages, was thought to have considerable significance for the decision of this question viz., the difference between the words 'good cause' for nonappearance in O. IX, R. 7 and 'sufficient cause' for the same purpose in O. IX, R. 13 as pointing to difference criteria of 'goodness' of 'sufficiency' for succeeding in the two proceedings; and as therefore furnishing a ground for the inapplicability of the rule of res judicata. As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between, the facts to be established for satisfying the two tests of 'good cause' and 'sufficient cause'.
As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between, the facts to be established for satisfying the two tests of 'good cause' and 'sufficient cause'. We are unable to conceive of a 'good cause' which is not 'sufficient' as affording an explanation for non-appearance, nor conversely of a 'sufficient cause' which is not a good one and we would add that either of these is not different from 'good and sufficient cause' which is used in this context in other statutes. If, one the other hand, there is any difference between the two, if can only be that the requirement of a 'good cause' is complied with on a lesser degree of proof than that of 'sufficient cause' and if so, this cannot help the appellant, since assuming the applicability of the principle of res-judicata to the decisions in the two proceedings, if the Court finds in the first proceeding, the lighter burden not discharged, it must be a fortiori bar the consideration of the same matter in the later where the standard of proof of that matter is, if anything higher." 5. The learned counsel for the opposite party has also referred to P. Subbamma v. Ch. Veskata Reddy, AIR 1973 Mad. 260 , in which it has been held that there is no difference in principle between a revision petition under Section 115, Civil Procedure Code and one under Section 25, Provincial Small Cause Courts Act, so far as the question of maintainability is concerned and consequently when a revision petition under either of the aforesaid sections is dismissed for default of appearance, the petition cannot be restored. He has also referred to A.C. Estates v. Serajuddin and Co., AIR 1966 S.C. 935 , in which it has been held that the Rent Controller under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, had no power to set aside his order under Section 151, C.P.C. merely because of a subsequent amendment in law, Shamshad v. Mambub Khan, AIR 1925 Oudh 105 has also been referred to. In this, it has been held that an order of restoration of the suit passed without any application on the part of the plaintiff and beyond the period of limitation is ultra vires. In Ramamurthi Iyer.
In this, it has been held that an order of restoration of the suit passed without any application on the part of the plaintiff and beyond the period of limitation is ultra vires. In Ramamurthi Iyer. v. Meenakshi Sundarammal, AIR 1945 Mad. 103 , the Madras High Court has taken the view there is no provision for restoring civil revision petition dismissed for default of appearance. In Gajraj Singh v. Suraj Bux Singh, AIR 1948 Oudh 116, the following observations have been made: "Lastly it was argued that even if the Court held that there was no sufficient cause, the appeal should be restored under the inherent powers of the Court. I have already indicated sufficiently clearly in the preceding paragraphs that apart from the provisions of O. 9 of the Code, the Court has got no inherent powers to restore suits or appeals dismissed for default. The case of execution proceedings stood on a different footing as O. 9 does not apply to those proceedings. No authoritative decision of this Court is cited to show that apart from execution proceedings inherent powers can be invoked in other cases as well. In any view of the matter, even if inherent powers could be invoked, these powers cannot be exercised as a matter of course unless it is necessary in the ends of justice or to prevent an abuse of the process of the Court. Where it is not shown that the litigant or his counsel exercised reasonable diligence in prosecuting the case, on the other hand, it appears that he was guilty of negligence and carelessness, it would be opposed to justice, equity and good conscience to exercise these powers in his favour." 6. The learned counsel for the applicant has argued that the revision petitions in the Board of Revenue are not under Section 115 of the Code of Civil Procedure but under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act, and the observations made by the Madras High Court in the case cited above would relate to revision petition under Section 115, C.P.C. and not under section 333, U.P.Z.A. and L.R. Act. Certainly, I am not convinced that a revision petition under Section 333, U.P.Z.A. and L.R. Act, which has been dismissed in default, cannot be restored under any provision of law.
Certainly, I am not convinced that a revision petition under Section 333, U.P.Z.A. and L.R. Act, which has been dismissed in default, cannot be restored under any provision of law. As regards the decision in Shamshad v. Mahbub Khan, AIR 1925 Oudh 105, it has no applicability to the present case in view of the fact that in that case the order of restoration was passed without any application on the part of the plaintiff and beyond the period of limitation. 7. The learned counsel for both the parties rely upon the principles laid down in Arjun Singh v. Mohindra Kumar, AIR 1964 S.C. 993 and and A.C. Estates v. Serajuddin and Co., AIR 1966 S.C. 935 . After a careful perusal of these rulings. I am of the view that good and sufficient cause exists in the present case for allowing the restoration application. 8. The learned counsel for the opposite party had also advanced the argument that instead of three separate restoration applications, only on restoration application was moved on May 20, 1976. This argument is only of a technical nature. It may be observed that three suits had been filed by the opposite party. Shri Sanatan dharm Siksha Samiti, against the revisionist Deo Dutt Upadhaya, All the three suits were consolidated together and were decided by a single judgment of the trial court dated May 30, 1966. Subsequently the appeals against the judgment of the trial court were also consolidated together and decided by a common order of the Additional Commissioner dated January 6, 1975. In the Board of Revenue also the three revisions were consolidated and heard together. A single common order was passed dismissing the three revisions in default. Thus, the omission of the learned counsel for the revisionist to move three separate restoration applications is only one of a technical nature. The restoration applications is only one of a technical nature. The restoration applications, cannot be dismissed on this technical ground alone. The learned counsel has subsequently deposited the Court fee for three restoration application and thus the single restoration application of separate restoration applications in each of the revision petitions. 9. As good and sufficient cause for restoration has been shown, I, hereby, in the interest of justice allow the restorations applications. The Revisions Nos.
The learned counsel has subsequently deposited the Court fee for three restoration application and thus the single restoration application of separate restoration applications in each of the revision petitions. 9. As good and sufficient cause for restoration has been shown, I, hereby, in the interest of justice allow the restorations applications. The Revisions Nos. 173, 174 and 175 of 1974-75 district Jalaun, shall be restored to their original position and may now be listed for final hearing on merits on February 21, 1977.