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2002 DIGILAW 320 (JK)

National Textile Corp. Ltd. v. Bharat Bhushan

2002-10-10

B.L.BHAT

body2002
1. It is reported by the Registry that there is delay of 16 days in filing the moition of revision. This delay is negligible and stands properly explained in para 2 of the petition, therefore, the delay in presenting the petition of revision is condoned. 2. I have heard Learned Counsel for the parties on the motion of revision also. 3. This revision is directed against the order of learned City Judge, Jammu dated 11.4.2002 by virtue of which Civil Original Suit titled as "Bharat Bhushan Vs Ms. National Textiles Corporation Ltd." Came to be restored to its original number. It appears that a suit for recovery of Rs.7,817.25 Paise came to be instituted by the respondent/plaintiff against the petitioner/defendant which was pending decision before the Learned City Judge, Jammu who by virtue of order dated 27.11.2001 came to dismiss the suit for the non appearance of the respondent/plaintiff. It is further appears that the respondent/ plaintiff came to file an application for the restoration of the said suit which came to be registered as Civil Miscellaneous petition No.183 of 21.12.2001. On presentation of the application, orders of issuance of notice to the petitioner/defendant and for calling of the record came to be passed, and this petition came to be adjourned to 03.1.2001, 31.01.2001 and 11.3.2002 from time to time finally to 11.4.2002. On this date, the impugned order came to be recorded which is in Urdu Language, the translation of which reads as under:- "Parties Present. I have examined the file and find that the suit was at its initial stage and came to be dismissed on 27.11.2001 for the non appearance of the plaintiff, therefore, the suit has not been dismissed on merits. In my opinion a good case has been consigned to record , at a preliminary stage as a result of which injustice has been caused to the parties. Therefore, the application for restoration is allowed and the Original file is restored to its original number. This petition for restoration be annexed with the main file." 4. Considered the impugned order, the most striking feature of this order is its extraordinary brevity which raises a suspicion in the mind of this court that the order is ill-considered and arbitrary. It is bereft of narration of the pleadings of the case and the discussion of the contentions of the parties. Considered the impugned order, the most striking feature of this order is its extraordinary brevity which raises a suspicion in the mind of this court that the order is ill-considered and arbitrary. It is bereft of narration of the pleadings of the case and the discussion of the contentions of the parties. It is not proper discharge of duty to dispose of a new trial application by merely allowing it. A judgement with-holding reasons on which it is based and silent regarding the contentions raised before the Court is dis-appointing, unsatisfactory and improper. Order 9 Rule 8 CPC deals with the restoration of the suits dismissed in default for the appearance of the plaintiff. This rules envisages that plaintiff seeking an order to set aside the dismissal in default for the appearance of the suit has to satisfy the Court that there was sufficient cause for his non appearance when the suit in question was called on for hearing. The impugned order does not demonstrate that the Learned Trial Court has recorded any finding to the effect that he was satisfied that the plaintiff/non applicant had sufficient cause of non-appearance on the date when the said suit which came to be dismissed in default when called on for hearing. Moreover, the order also does not disclose as to whether the said petition filed by the respondent/plaintiff was within time. 5. Viewed thus the order impugned suffers with jurisdictional error and has been passed with material irregularity. If allowed to stand, shall cause injustice to the petitioner/ defendant. 6. Therefore, the order impugned is set aside. The parties are relegated back to the Court below for agitating their grievances. The Learned Trial Court will proceed with the restoration application in accordance with law and shall pass appropriate orders. This restoration application is directed to be restored to its original number. This order be communicated to the trial Court forthwith without any loss of time by a Special Messenger with a direction to stay the proceedings in the main suit. The parties shall cause their appearance before the said Court on 10.10.2002.