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2004 DIGILAW 546 (PNJ)

Amarjit Kaur v. Ujagar Singh

2004-05-12

SURYA KANT

body2004
Judgment Surya Kant, J. 1. This civil revision has been directed against orders dated March 2, 1983 passed by learned Additional Senior Sub-Judge, Dasuya, and dated February 10, 1984 passed by the Additional District Judge, Hoshiarpur, whereby the application filed by the petitioner for restoration of her suit which was dismissed and the appeal preferred by her against that order was dismissed. 2. Two suits i.e., Suit No. 228 of 1979 titled Amarjit Kaur v. Ujagar Singh and Ors. and No. 204 of 1980 titled Ujagar Singh v. Amarjit Kaur, were filed inter se suits were fixed for hearing on 8.3.1982. It seems that on that date when the case was called, neither the attorney of the petitioner-plaintiff (Amarjit Kaur), namely, Pargat Singh, nor her counsel, Shri Darshan Singh, Advocate appeared in the afore-mentioned suit which was dismissed in default. The petitioner had also engaged another counsel from Jalandhar who reached the Court at 3.00 P.M. only and having found that the civil suit filed by the petitioner had already been dismissed in default., moved an application for restoration thereof on the same day i.e. 8.3.1982. The restoration of the suit was prayed for, inter alia on the grounds that : (i) the petitioner had gone abroad and had appointed Shri Pargat Singh as her attorney who could not appear as he had fallen sick; (ii) she had engaged Shri Darshan Singh, Advocate who remained busy in some other case and could not appear in time. (iii) she had yet engaged another counsel from Jalandhar who reached at 3.00 P.M. in the Court at Dasuya and reason for non-appearance was bona fide and beyond her control. 3. The application was opposed by the defendant-respondents. 4. The learned trial Court consequently framed the issues including the one as to whether there was sufficient ground for setting aside the order of dismissal of the suit on March 8, 1982 or not? In support of the above mentioned issue, the petitioner examined two witnesses namely Pargat Singh as AW1 and Dr. Santokh Singh as AW2 and also tendered in evidence the medical certificate, Exhibit AW2/A. No evidence was, however, led by the defendant-respondents. 5. In support of the above mentioned issue, the petitioner examined two witnesses namely Pargat Singh as AW1 and Dr. Santokh Singh as AW2 and also tendered in evidence the medical certificate, Exhibit AW2/A. No evidence was, however, led by the defendant-respondents. 5. The learned trial Court dismissed the aforesaid application for restoration of the suit on the ground that her counsel at Dasuya was busy in some other work and not in a Court case and the other counsel from Jalandhar reached at 3.00 P.M. only and that the medical certificate coupled with the statement of her attorney. Pargat Singh, in relation to his illness on that day was not convincing and that once the medical certificate in relation to illness of Pargat Singh is excluded, then his absence has to be held for insufficient cause. The appeal filed by the petitioner also met with the same fate and was dismissed by the learned Additional District Judge, Hoshiarpur vide order dated February 10, 1984 reiterating the same grounds. 6. I have heard Shri Amanpreet Singh, learned counsel for the petitioner and also perused the record. No one appeared for the respondents. 7. The question herein arises as to whether or not there existed sufficient cause for non-appearance of the petitioner on March 8, 1982, when her suit was dismissed in default? It is self-evident from the impugned order that the application for restoration of the suit was moved by the petitioner on the same day i.e. on March 8, 1982. It has also come on record that she had gone abroad and had appointed one Pargat Singh as her attorney. Not only this, she engaged one counsel at Dasuya and another from Jalandhar to contest the case on her behalf. It is unfortunate that the learned counsel representing the petitioner at Dasuya could not attend the Court in time due to his pre-occupation in some other work whereas the counsel from Jalandhar could reach the Court at Dasuya only at 3.00 P.M. but the fact remains that having engaged two Advocates, the petitioner cannot be blamed to be either negligent or irresponsible in pursuing her suit. So far as non-appearance of her attorney is concerned, it has come on record that on account of his illness on that day, he could not be present in the Court. So far as non-appearance of her attorney is concerned, it has come on record that on account of his illness on that day, he could not be present in the Court. In view of the fact that apart from Medical Certificate, Ex.AW2/A regarding illness of Pargat Singh, Attorney of the petitioner, even the doctor himself appeared as a witness, as AW2, the Courts below ought not to have discarded the same, particularly when no evidence was led by the defendant-respondents to show that either the plea of illness taken by Pargat Singh was unfounded/false or that the petitioner had not gone abroad at the relevant time. In my view, the fact that the application for restoration was moved on the same day itself when the counsel for the petitioner reached from Jalandhar, was a strong circumstance to recall the order dated March 8, 1982 and to proceed with the suit on merit. 8. Fair trial with sufficient opportunity to contest the issues inter se the parties is one of the cardinal principles of substantial justice. The Courts need not indulge in mere hyper-technicalities thereby requiring the parties to have one after the other round of litigation and waste precious public time. The Courts below, in this case, should also have keep in mind that the suit filed against the petitioner was still pending adjudication and both the suits having been clubbed together, could be decided on merits by one set of judgments only. 9. For the reasons recorded above, this civil revision is allowed, the impugned orders are set aside and the suit of the plaintiff-petitioner is restored to its original number. 10. Since the matter in question has remained pending for adjudication for the last 20 years, trial Court is directed to decide the suit expeditiously but not later than a pe- riod of six months from the date of first appearance of the parties before it. Parties are directed to appear before the Trial Court on July 24, 2004.