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2001 DIGILAW 621 (PNJ)

Adarsh Rani v. Chuni Lal

2001-05-29

V.K.BALI

body2001
JUDGMENT V.K. Bali, J. - Prayer in this application under Section 151 of the Code of Civil Procedure is to restore Civil Misc. in Civil Revision which was dismissed in default and to decide the same on merits. Inasmuch as, there is delay in filing the application, the same is accompanied by an application under Section 5 of the Limitation Act for condonation of delay accompanied by an affidavit. 2. The records of the case would bear it out that the Civil Revision was dismissed for want of prosecution on January 22, 1999. While dismissing the same for want of prosecution the following order was passed :- "This case pertains to the year 1982. It is 2.40 PM. No one has chosen to appear on behalf of the petitioner. Petition to stand dismissed for want of prosecution." Civil Misc. No. 2191-C-II of 1999 was then filed for restoration of revision which, as mentioned above, was dismissed in default. Notice of this application was issued to the counsel opposite on February 26, 1999 and the matter was adjourned to March 15, 1999. The matter, however, came up for hearing on July 9, 1999, when on the request of the counsel for the applicant, it was adjourned to August 6, 1999. There was yet another request by the counsel for the applicant for adjourning the case and the case was adjourned to September 10, 1999. The request for adjournment went on unabated as the records would bear it out that on September 10, 1999, request for adjournment was made and then it was adjourned to October 15, 1999. Yet again on December 17, 2000, on written request made for adjournment, this case was adjourned to February 10, 2000. On the adjourned date i.e. February 10, 2000 office was asked to send for the record of the trial Court and the matter was adjourned to March 10, 2000. On the date aforesaid, as none appeared the case was yet adjourned in the interest of justice to April 20, 2000. When no one yet appeared on April 20, 2000, following order was passed :- "The application for restoration of Civil Revision has been adjourned number of times. No one has chosen to appear on behalf of the applicant. It is 3 p.m. Application stands dismissed for want of prosecution." 3. When no one yet appeared on April 20, 2000, following order was passed :- "The application for restoration of Civil Revision has been adjourned number of times. No one has chosen to appear on behalf of the applicant. It is 3 p.m. Application stands dismissed for want of prosecution." 3. The facts leading to dismissal of the revision petition for want of prosecution as also the application for restoration thereof have been fully detailed above. The time is now ripe to evaluate the facts and circumstances in which the present application for restoration of Civil Misc. application for restoration of Civil Revision has been made. It has, inter-alia, been pleaded in the application that the Clerk while noting down the date wrongly noted 26.5.2000 instead of 20.4.2000. On 26.5.2000 when number of case did not appear in the list, the matter was enquired from the branch, wherein it was found that the actual date was 20.4.2000 and not 26.5.2000 and misc. application had been dismissed for want of prosecution. It has further been pleaded that mistake in noting down the date as 26.5.2000 instead of 20.4.2000 was bona fide and wrong impression and it was not deliberate or intentional and, therefore, same deserves to be condoned and revision restored at its original number to heard and decided on merits. 4. During the course of arguments, learned counsel representing the applicant was asked to show the diary or brief where the wrong date, i.e., 26.5.2000 might have been noted. The counsel, in compliance with the directions of the Court, has handed over a brief where under the column Date, one of the dates mentioned is 28.4.2000, whereafter, of course, 26.5.2000 has been mentioned. It is apparent that 8 in the date 28.4.2000 has been interpolated. Digit 0 clearly seems to have been converted into digit 8. This over-writing and conversion of the date from 20.4.2000 to 28.4.2000 is otherwise also apparent inasmuch as there was no date as 28.4.2000 in this case. In fact, Civil Misc. application came to be dismissed on 20.4.2000, whereafter the dates were given only after the application in hand was filed, as per brief of the lawyer, on 1.8.2000. The brief of lawyer has been retained on records of the case. 5. In fact, Civil Misc. application came to be dismissed on 20.4.2000, whereafter the dates were given only after the application in hand was filed, as per brief of the lawyer, on 1.8.2000. The brief of lawyer has been retained on records of the case. 5. From the narration of facts, as given above, this Court is of the clear view that date 26.5.2000 has been mentioned on the brief of the lawyer just to make a ground for condonation of delay in filing the application for restoration of the misc. application. 6. From the perusal of the brief of the Lawyer, it can atleast be said that the averments made in the affidavit are false to the knowledge of the one who has given the same. It may be mentioned at this stage that both the applications i.e. one for restoration and the other of condonation of delay have bene supported by affidavit of Devinder Singh Clerk of Mr. A.S. Kalra, Advocate. 7. When confronted with the position aforesaid, Mr. A.S. Kalra, learned counsel who was initially not present stated that it was a mistake and his office was sorry for the same. 8. No doubt, this Court as also the Apex Court have not been strictly viewing the procedural lapses and while advancing the cause of justice small deviation from the procedure has normally been ignored. In this case, however, the Court is of the view that it is not a case of procedural deviation or lapse. In fact, it is a case of forgery and as such delay cannot be condoned. Inasmuch as the application is based upon incorrect and false assertions, the same is dismissed. The application for condonation of delay in view of the dismissal of the main application does not survive. Looking to the seriousness of the matter, the Court strictly warns Devinder Singh Clerk to be careful in future. It may be mentioned here that the Court was inclined to get a criminal case registered against Devinder Singh Clerk but, on the repeated requests made by Mr. Amrik Singh Kalra, Advocate, that his clerk was negligent in the whole affair and he had taken a lesson of life and would never indulge in such like practice, the Court stops short at that only, i.e., a stern warning to Devinder Singh Clerk to be careful in future. Application dismissed.