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2001 DIGILAW 964 (PNJ)

Mohinder Singh v. Gurmel Singh

2001-08-31

JASBIR SINGH

body2001
ORDER Jasbir Singh, J. - The present revision petition has been filed against the order, vide which application of the petitioner-plaintiff for restoration of the suit, which was dismissed in default on 22.3.1991, was declined. 2. In the present case, the petitioner-plaintiff filed a suit and after notice, the said suit was fixed for 26.2.1991 before the trial court. Service of defendant No. 2 was not complete and the case was adjourned to 22.3.1991 for service of the defendant No. 2 and on the said date when the petitioner- plaintiff failed to put up his appearance, the suit was dismissed in default. The petitioner, thereafter, moved an application on 19.4.1991 for recalling the order and restoration of the suit dismissed for non-prosecution. Notice of the said application was given to the respondents, who appeared and opposed the same. The trial Court framed the issues. Parties got their evidence recorded and ultimately the application was declined by the trial Court by stating that no sufficient cause has been shown regarding absence of the petitioner-plaintiff/his counsel on the date fixed, i.e., 22.3.1991. 3. Heard counsel for the parties. Shri Bajwa appearing on behalf of the petitioner states that the petitioner moved the application immediately when he came to know about the impugned order. There exists sufficient evidence on record to show that absence of the petitioner was not wilful and he could not appear because of some confusion regarding, as to in which court his case is pending after transfer. 4. Shri Jain, counsel appearing for the respondents, has stated that the order of the trial Court is justified and no case in made put for restoration of the case since the petitioner has failed to show sufficient cause for his non- appearance on the date fixed. 5. After hearing the counsel for the parties, this court feels that the order under challenge is not justified. The case was fixed before the trial Court earlier on 22.2.1991. On the said date, service of defendant No. 2 therein was not complete and the case was adjourned to 22.3.1991 for service of defendant No. 2. It is apparent that nothing worthwhile was to be done on the date fixed and it can not be presumed that the petitioner has deliberately chosen not to appear on the said date. No deliberate attempt to delay the matter can be attributed to the petitioner. It is apparent that nothing worthwhile was to be done on the date fixed and it can not be presumed that the petitioner has deliberately chosen not to appear on the said date. No deliberate attempt to delay the matter can be attributed to the petitioner. The application for restoration of the suit was filed within a period of 30 days and sufficient explanation was also given. 6. Under these circumstances, the trial Court was required to restore the suit, may be subject to the payment of costs. The trend is towards the matters to be decided on merits and not to dis-entitle the party merely on technical grounds. It is a case where the suit could have been restored and the opposite parties could have been compensated by awarding costs. 7. In view of the facts stated above, the revision petition is allowed. The order under challenge is set aside, subject to the payment of Rs. 2500/-, which shall be paid by the petitioner to respondent No. 1. Intimation be sent to the trial Court to take up the matter immediately, restore the suit and issue notice to the parties for further proceedings. Revision allowed.