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2004 DIGILAW 11 (PNJ)

Balbir Singh v. Jagir Kaur

2004-01-07

VINEY MITTAL

body2004
Judgment Viney Mittal, J. 1. In view of the law laid down in the case of Shiv Shakti Coop. Housing Society Nagpur v. Swaraj Development and Ors.,1 J.T. 2003(4) S.C. 255, the revision petition filed by the petitioners under Section 115 CPC is not maintainable. 2. Faced with this difficulty, the learned counsel submits that the present revision petition may be treated as petition under Article 227 of the Constitution of India. 3. Keeping in view the facts and circumstances of the case and request made by the learned counsel for the petitioners, the present petition is treated to be a petition under Article 227 of the Constitution of India. 4. The plaintiffs are petitioners before this Court. They are aggrieved against the order dated May 8, 1978 as well as the order dated April,21, 1984 passed by the learned Sub Judge, 1st Class, Samrala. Vide order dated May 8, 1978 the suit of the plaintiffs was dismissed for want of prosecution under Order 9 Rule 3 of the Code of Civil Procedure inasmuch as neither the plaintiffs nor their counsel had appeared on the date fixed in the Court. However, a request was made on behalf of learned counsel appearing for the plaintiffs on the aforesaid date, which was also rejected by the learned trial Court. 5. Subsequently, on the next date an application was moved by the plaintiffs for restoration of the suit. The said application was also dismissed by the learned trial court vide order dated April, 21, 1984. 6. It is not in dispute that the suit was at the initial stages, inasmuch as, even the written statement had not been filed by the defendants. Another fact which is noticeable from the record of the case is that on the date fixed before the learned trial court i.e., on May 8, 1978, the defendants counsel was also not present. 7. In my considered view, the orders passed by the learned trial court cannot be legally sustained, inasmuch as the entire approach of the learned trial Court in passing the order dated May 8, 1978 is casual. When a request had been made on behalf of the learned counsel for the plaintiffs, and an adjournment had been sought and the case was at the initial stages then there was absolutely no justification for the learned trial Court to decline the request and refuse to adjourn the case. When a request had been made on behalf of the learned counsel for the plaintiffs, and an adjournment had been sought and the case was at the initial stages then there was absolutely no justification for the learned trial Court to decline the request and refuse to adjourn the case. 8. Even otherwise, when on the next date itself an application had been moved fori the restoration of the suit, then neither any notice of the same was required to be served upon the defendants, inasmuch as the suit had been dismissed for non-prosecution under the provisions of Order 9 Rule 3 of the Code of Civil Procedure, nor the defendants had any legal right to contest the application. In any case, nothing had been shown by the defendants that the non-appearance of the plaintiffs or their counsel on the date fixed, before the learned trial court was in any manner mala fide or intentional. 9. It is well settled that Rules of procedure are mere hand maids of justice. Courts of law are required to do justice between the parties and not resort to mere technicalities to thwart the ends of justice. 10. In this view of the matter, the orders dated May 8, 1978 and April 21, 1984 passed by the learned trial Court are set aside and the suit is restored back to its original number. 11. Since the present revision petition itself has remained pending for a period of almost 19 years, therefore, it would be in the interest of justice that the proceedings in the suit be decided as expeditiously as possible and within a time bound frame. 12. In view of the matter, the learned trial court shall now grant three effective opportunities to the plaintiffs to lead their entire evidence at their own responsibility. The plaintiffs shall be entitled to dasti process and also seek the assistance of the Court to serve summons on the witnesses but production of such witnesses shall be sole responsibility of the plaintiffs itself. 13. After the conclusion of the evidence of the plaintiffs, the defendants, likewise shall also be granted three effective opportunities to lead their evidence. The defendants would also be entitled to seek the assistance of the court to serve the witnesses but production of such witnesses shall also be the responsibility of the defendants itself. 13. After the conclusion of the evidence of the plaintiffs, the defendants, likewise shall also be granted three effective opportunities to lead their evidence. The defendants would also be entitled to seek the assistance of the court to serve the witnesses but production of such witnesses shall also be the responsibility of the defendants itself. On conclusion of the evidence by the defendants, the plaintiffs would also be entitled to lead evidence in rebuttal, if they have any right to do so. Since the defendants have not, as yet, filed the written statement, therefore, the defendants would now file the written statement on or before March 15, 2004. 14. The parties through their learned counsel are directed to appear before the learned trial court on Feb., 9, 2004.