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2003 DIGILAW 517 (PNJ)

Sewa Singh v. Harbans Singh

2003-04-09

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. Gurnam Singh petitioner, who is the legal representative of Sewa Singh (plaintiff before the trial Court) has filed the instant revision petition against the order dated 18.10.1993, passed by the trial Court, vide which an application under Order IX Rule 4 of the Code of the Civil Procedure (hereinafter referred to as the Code) filed by the petitioner with other legal representatives of Sewa Singh for restoration of the suit, has been dismissed. 2. The brief facts of the case are that the aforesaid Sewa Singh was having four sons and three daughters. He was owning certain landed property. One of his son, namely Harbans Singh respondent No. 1 (defendant No. 1 before the trial Court) sold 10 kanals 17 marlas of land owned by his father Sewa Singh as his attorney in favour of his wife Smt. Baljinder Kaur respondent No. 2 defendant No. 2 before the trial court), vide sale deed dated 11.9.1989. When Sewa Singh came to know about the said illegal act, he filed a suit for declaration against respondents No. l and 2 on 8.5.1990 challenging the sale deed dated 11.9.1989 being illegal and void and not binding on his right. Pursuant to the notice issued in that suit, respondents No. l and 2 appeared. They sought time to file written statement. In the meantime Sewa Singh plaintiff expired on 22.12.1990. Thereafter, the petitioner alongwith other legal representatives (who are remaining sons and daughters of deceased Sewa Singh) filed application for impleading them as plaintiffs in the suit. The contesting respondents sought time to file reply to the said application. For that purpose, the case was adjourned to 8.2.1991. On 8.2.1991, they again sought time and the case was adjourned to 18.2.1991. On that date, none of the parties was present and the suit was dismissed in default under Order IX Rule 3 of the Code by passing the following order: Present: None. Case called several times. It is 3.40 p.m. Suit dismissed in default under Order 9 Rule 3 CPC. File be consigned to record. Sd/- 18.2.91. 3. On 12.4.1991, the petitioner and proforma respondents filed the instant application under Order IX Rule 4 of the Code for restoration of the aforesaid suit. Case called several times. It is 3.40 p.m. Suit dismissed in default under Order 9 Rule 3 CPC. File be consigned to record. Sd/- 18.2.91. 3. On 12.4.1991, the petitioner and proforma respondents filed the instant application under Order IX Rule 4 of the Code for restoration of the aforesaid suit. In the application, they stated that on 18.2.1991, the case file of the aforesaid suit was not put up before the Court and the Reader of the Court gave then 26.2.1991 as next date of hearing. On 26.2.1991, both the parties were present and the Reader of the Court asked for an application to fix the date of the case. The said application was filed by Dilbagh Singh, one of the legal representatives of deceased Sewa Singh. On that application, the next date of hearing was given as 18.3.1991. Again on 18.3.1991, both the parties came present in the Court. Then they came to know that the suit was already dismissed in default on 18.2.1991 under Order IX Rule 3 of the Code. Therefore, the instant application for restoration of the aforesaid suit was filed. 4. The aforesaid application for restoration of the suit was contested by respondents No. 1 and 2 by alleging that the application was barred by limitation and that the applicants did not properly explain their absence when the suit was dismissed in default. On that application, the learned trial court framed issues of the effect whether the suit is liable to be restored, and whether the application filed by the legal representatives of Sewa Singh plaintiff is barred by limitation? Both the parties were provided opportunity to lead evidence. Thereafter, vide the impugned order the aforesaid application for restoration of the suit was dismissed being barred by limitation. 5. Learned counsel for the petitioner submitted that when the suit was dismissed in default on 18.2.1991, none of the parties was present. From this fact, it appears that there was some mis-understanding among the parties about the date of hearing. He further submitted that when on 18.3.1991, the petitioner and proforma respondents came to know that the suit was dismissed in default, they immediately filed application for restoration of the suit on 12.4.1991. From this fact, it appears that there was some mis-understanding among the parties about the date of hearing. He further submitted that when on 18.3.1991, the petitioner and proforma respondents came to know that the suit was dismissed in default, they immediately filed application for restoration of the suit on 12.4.1991. Learned counsel for the petitioner submitted that when the suit was dismissed in default under Order IX Rule 3 of the Code, it could have been restored on the application filed by the petitioner and proforma respondents on the basis of affidavit filed by them and there was no necessity of framing the issues and examining the evidence for that purpose. Learned counsel for the petitioner further submitted that when the suit was dismissed, even the written statement was not filed by the contesting respondents. Sewa Singh plaintiff expired soon after filing of the suit and thereafter, an application was filed by the petitioner and proforma respondents for impleading them as plaintiff. Even reply to that application was not filed by the contesting respondents. Therefore, the suit was at a very initial stage. Learned counsel further submitted that there was no reason for the petitioner and the proforma respondents to remain willfully absent from the proceedings of the suit, as they were to do nothing. Only the contesting respondents were required to file reply to the application for impleading legal representatives of deceased Sewa Singh as plaintiffs. Thus, learned counsel submitted that keeping in view these facts, the learned trial court should have allowed the application for restoration of the suit. Learned counsel for the petitioner further submitted that by dismissal of the suit, an illegal sale deed which was fraudulently executed by respondent No. 1 in favour of his wife-respondent No. 2 being attorney of his father Sewa Singh, will remain sustained. It will cause great prejudice to the petitioner and proforma respondents, who are other sons and daughters of deceased Sewa Singh. Therefore, if the impugned order is allowed to stand, a great injustice will be caused to them. 6. On the other hand, learned counsel for the contesting respondents submitted that there is no illegality or irregularity in the impugned order, as the learned trial court, after recording the evidence, has come to the conclusion that the application filed by the petitioner and proforma respondents is barred by limitation. 6. On the other hand, learned counsel for the contesting respondents submitted that there is no illegality or irregularity in the impugned order, as the learned trial court, after recording the evidence, has come to the conclusion that the application filed by the petitioner and proforma respondents is barred by limitation. Therefore, this order does not require any interference by this Court. 7. I have heard learned counsel for the parties. In my opinion, this revision petition deserves to be allowed. The impugned order passed by the learned trial Court is not sustainable in the eyes of law. Undisputedly, when the suit was dismissed on 18.2.1991, none of the parties was present. It has also not been disputed that in the suit no written statement was filed by the contesting respondents. It is also undisputed that even reply was not filed to the application filed by the petitioner and proforma respondents for impleading them as plaintiffs in the suit. It has also come on record that the suit was fixed on 18.2.1991 for filing reply by the contesting respondents to the aforesaid application for impleading the legal representatives of deceased plaintiff. The petitioner and proforma respondents were not to do anything on 18.2.1991. It does not stand to reason why they would not have appeared on that date. Moreover, when both the parties were not present on the said date, it seems that there was some misunderstanding about the date of hearing. In such a situation, it is always in the interest of justice and fair procedure of law to restore the suit dismissed in default. But the learned trial court, in my opinion, has adopted a procedure which was not in furtherance of justice. There was no necessity of framing the issues and taking the evidence of both the parties on the application for restoration, particularly when the suit was dismissed in default in absence of both the parties. It was a mere wastage of time of the Court. In Pritam Chand v. Shamsher Singh and ors. (1986-1)89 P.L.R. 315, this Court has held that if a suit is dismissed under Order IX Rule 3 of the Code in absence of both the parties, the Court has the jurisdiction or power to restore the suit if sufficient cause is shown, even without issuing notice to the opposite side. In Pritam Chand v. Shamsher Singh and ors. (1986-1)89 P.L.R. 315, this Court has held that if a suit is dismissed under Order IX Rule 3 of the Code in absence of both the parties, the Court has the jurisdiction or power to restore the suit if sufficient cause is shown, even without issuing notice to the opposite side. Even if the notice was issued to the opposite side, it is not necessary to frame an issue and then to try the matter for couple of years and then to find out whether the suit is to be restored or not. The matter should have been decided merely on the basis of affidavits in the shortest possible time. It has been further observed in the said decision that direction is to be issued to the trial Courts to keep in view that such matters are not to be strictly decided like the rights of the parties in the main suit; and as far as possible, the parties should be allowed to contest their claims on merits instead of dismissing the suit by refusing to restore it. 8. Further, I am of the opinion that the application filed by the petitioner and proforma respondents for restoration of the suit cannot be said to be barred by limitation as the application was filed by them within 30 days of the date of knowledge. Even if there was any delay, the same was duly explained and there was no reason for the trial court not to believe the version given by the petitioner and proforma respondents regarding delay. The absence of the petitioner and proforma respondents on 18.2.1991 was not intentional and wilful. Therefore, the learned trial court has certainly acted with a great illegality while passing the impugned order, which has resulted into manifest in-justice to the petitioner and proforma respondents. In another decision of this Court in M/s Radha Jute Industry v. M/s Sukhna Papers Mills Ltd.Chandigarh, (1991-1)100 P.L.R. 108, a Division Bench of this Court has held that if a petition was fixed for filing written statement by the respondent and the same was dismissed in default as none of the parties was present, in such situation, the petition should not have been dismissed simply because nobody appeared for the petitioner, particularly when nobody appeared for the respondent either. In view of the aforesaid discussion, the instant revision petition is allowed; the impugned order dated 18.10.1993 passed by the trial court is set aside; the application filed by the petitioner and proforma respondents under Order IX Rule 4 of the Code is allowed; and the order of the learned trial court dated 18.2.1991 dismissing the suit in default is hereby set aside with the result that the suit becomes pending in the trial court. The parties, through their counsel, are directed to appear before the trial Court on 29.5.2003. The trial court is directed to expedite the suit as early as possible, preferably within a period of two years. No order as to costs.