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2001 DIGILAW 1495 (AP)

Mohd. Jameel v. Shaik Bikkan

2001-11-20

P.S.NARAYANA

body2001
( 1 ) HEARD Sri Bankatlal Mandhani and sri T. S. Anand, learned Counsel representing the parties. ( 2 ) THE C. R. P. is filed as against an order made in C. M. A. No. 27/99 on the file of the 1-Additional District Judge, Warangal, confirming the order made in I. A. No. 650 of 1995 in O. S. No. 6 of 1998 on the file of the ii-Additional Senior Civil Judge, Warangal. ( 3 ) THE revision petitioners are the unsuccessful petitioners in both the Courts below. The petitioners filed an application in LA. No. 650 of 1995 in O. S. No. 6 of 1998 on the file of the II-Additional Senior Civil judge, Warangal, under Order IX Rule 9 of the Code of Civil Procedure praying the court to restore the suit in O. S. No. 6 of 1998 by setting aside the order of dismissal, dated 25-9-1995. The second plaintiff in the said suit had sworn to the affidavit in supporting the application wherein it was stated that they filed a suit for permanent injunction against the respondent- defendant and the suit was called along with O. S. No. l74/87and it was only on 12-9-1995 that the case was posted to 15-9-1995 and they have been under the impression that the suit will be called along with O. S. No. 174/87 and on 15-9-1995 the suit was again posted to 21-9-1995 and on the said day the suit was dismissed for default. The other side had not filed any counter. The Court below had observed that the suit docket does not disclose any order of joint trial or simultaneous trial of o. S. No. 6/88 along with O. S. No. 174/87 and taking the conduct of the parties also into consideration, specifying several dates, ultimately came to the conclusion that the parties are not interested in prosecuting the matter despite the imposition of costs at twice and hence, the application was dismissed by the Court of first instance, which was also confirmed in the appeal by the I-Additional District Judge, Warangal by an order dated 11-12-2000 and aggrieved by the same, the present C. R. P. had been preferred. ( 4 ) SRI Bankatlal Mandhani, the learned counsel representing the revision petitioners had taken me through the docket entries and had contended that whether in fact there was clubbing or not? ( 4 ) SRI Bankatlal Mandhani, the learned counsel representing the revision petitioners had taken me through the docket entries and had contended that whether in fact there was clubbing or not? the fact that the matter was being called with the other suit had been clearly established and despite the same, both the courts below on the ground that the docket does not disclose of any joint trial of o. S. No. 6/88 along with O. S. No. 174/87 had dismissed the application for restoration of the suit. This approach of both the Courts below is totally an erroneous one. ( 5 ) ON the contrary, Sri T. S. Anand, the learned Counsel representing the respondent had contended that as far as the docket proceedings are concerned, the courts are expected to follow such proceedings and the parties can not dispute those proceedings to be incorrect in any manner whatsoever. ( 6 ) THERE cannot be any dispute as far as this aspect is concerned. But, the fact remains that the series of docket proceedings go to show that one matter was being called with the other matter. It may be that, there might not have been a specific order of the clubbing of both the suits or one suit to be tried along with the other. What is material is whether on facts, as narrated by the deponent, the belief as averred by the deponent can be believed in the facts and circumstances of the case. It is not in dispute that an application for restoration of the suit was made within time. It is also, no doubt, true that the parties to the litigation cannot dispute the genuineness or otherwise of the Court proceedings and what had been recorded by the Court should only be taken as proof and correct. The crucial aspect that is to be considered is the bonafide impression of the parties, which made them to believe that this matter was being called with the other matter. In the facts and circumstances of the case, it cannot be said that this will not constitute sufficient cause as explained by the petitioners so as to have the suit restored to file. In the facts and circumstances of the case, it cannot be said that this will not constitute sufficient cause as explained by the petitioners so as to have the suit restored to file. On hearing the detailed submissions of both the Counsel and also on perusing the total material available on record, I am of the considered opinion that both the Courts below had totally erred in dismissing the application of the petitioners for restoration of the suit. However, as can be seen from the material available on record, no doubt, several docket proceedings had been filed before the revisional Court. These are all factual aspects, which may have to be dealt with by the Court of first instance. None of the parties had let in any evidence in support of their respective contentions. May be that, in the facts and circumstances of the case, the reason explained by the petitioners is a sustainable one. However, inasmuch as certain reasons had been recorded by the courts below, it is a fit matter where opportunity has to be given to both the parties to let in evidence to substantiate their respective contentions and hence, I deem it a fit case to be remitted back to the court of first instance-II Additional Senior civil Judge, Warangal, for the purpose of giving opportunity to both the parties to let in evidence relating to their respective contentions in this regard. ( 7 ) FOR the foregoing reasons, the C. R. P. is allowed to the extent indicated above. But, however, in the facts and circumstances of the case, no order as to costs.