Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 243 (JK)

Gh. Mohd. Rather v. Lasoo Dar

2009-05-18

J.P.SINGH

body2009
1. Mst. Jana, the predecessor-in-interest of the petitioners had filed an application on March 09, 1998 for restoration of her civil suit seeking adjudication of her rights in the landed property of her father, which was dismissed in default of appearance of the parties, on February 12, 1998 when the Advocates for the parties had reported `no instructions, in the matter. 2. The application was later transferred to the Court of Munsiff, Dangiwacha. Denying the plea of illness projected by the applicant in her application as the cause for her absence, the defendants opposed the restoration of suit on the ground that it had been got dismissed in default of appearance pursuant to the settlement between the parties, in terms whereof some of the pending litigation between them had been compromised and the present suit had been agreed to be dismissed in default of appearance. 3. Parties were allowed time to lead evidence to support their respective stand for and against the application. Mst. Jana died during the pendency of the application and the petitioners were substituted as her legal representatives. 4. Disbelieving Mst. Janas statement that she was unable to appear in the Court because of her illness, Munsiff, Dangiwacha dismissed her application vide his order of April 20, 2005. 5. Appeal filed against the order of learned Munsiff was dismissed as incompetent by the learned Additional District Judge, Baramulla on 5.6.2007. 6. This is how the petitioners have approached this Court seeking setting aside of learned Munsiffs order and restoration of the suit for its trial on merits. I have considered the submissions of learned counsel for the parties and gone through the order of learned Munsiff as also the records of the case. 7. Learned Munsiff has dismissed Mst. Janas application on the ground that the plea of illness projected as the cause of her absence, when the suit was called on for hearing, had not been supported by her in her statement and her application, in the absence of any affidavit in support thereof, was liable to be dismissed. 8. Perusal of Mst. Janas statement, however, indicates that the learned Munsiff had omitted to consider her statement as a whole and only part of the statement had been picked up to discredit her version. Statement made by Mst. Jana, while under re-examination, appears to have escaped learned Munsiff s notice. 9. The statement of Mst. 8. Perusal of Mst. Janas statement, however, indicates that the learned Munsiff had omitted to consider her statement as a whole and only part of the statement had been picked up to discredit her version. Statement made by Mst. Jana, while under re-examination, appears to have escaped learned Munsiff s notice. 9. The statement of Mst. Jana indicates that she had been prosecuting her suit through her son, as it usually happens that only male members of the family attend the courts for and on behalf of their elders, who, because of their illiteracy and social conditions of the area may not be able to properly prosecute/defend their lis. 10. Mst. Jana has indicated about her illness in her statement and there was no reason for the learned Munsiff to have disbelieved her version. Absence of the affidavit in support of the application would not, as such, dis-entitle her to seek consideration of the application when she had made a statement on oath before the Court in support thereof. 11. Learned Munsiff appears to have been influenced by the respondents plea, that the dismissal of the suit had occasioned in view of some compromise between the parties, which factor was, however, irrelevant for deciding the restoration or otherwise of the suit, in that, the plea projected by the defendants that there was a compromise between the parties and the dismissal of the suit in default of appearance was one of the terms of the settlement, could not, in law, be made a subject matter of adjudication in an application seeking restoration of suit. 12. Learned Munsiff has thus erred in ignoring Mst. Janas statement about her illness and dismissing her application as it was not supported by an affidavit, influenced by the defendants plea that the dismissal of suit had occasioned because of the compromise between the parties not to appear in the case. That apart, Mst. Janas application has been rejected by learned Munsiff, taking a technical view of the matter rather than adopting a pragmatic approach to address the real dispute for which the applicant had approached the Court for settlement of her rights in the immovable property of her father. 13. That apart, Mst. Janas application has been rejected by learned Munsiff, taking a technical view of the matter rather than adopting a pragmatic approach to address the real dispute for which the applicant had approached the Court for settlement of her rights in the immovable property of her father. 13. As the suit had been dismissed in default of appearance of both the parties, and the application had been moved by the plaintiff, within the prescribed period of limitation, a liberal approach was thus warranted to restore the suit for deciding the rights of the parties on merits. 14. Rather than resorting to the technicalities in rejecting applications/petitions, the Courts are required to address the real dispute between the parties so as to advance the cause of justice. 15. While dealing with restoration of suits dismissed in default, in terms of Order 9 Rules 2 & 3 of the Code of Civil Procedure, a liberal approach is required to be adopted by the Courts in view of the phraseology employed in the provisions of Order 9 Rule 4 of the Code which provides two remedies to the defaulter i.e. one of seeking restoration of the suit and the other of bringing a fresh suit on the same cause of action, subject however to the law of limitation. 16. The distinction appearing in the two provisions of the Code governing restoration of suits i.e. one under Order 9 Rule 4 and the other under Order 9 Rule 9 of the Code is required to be kept in view by the Courts while dealing with the matters regarding restorations. 17. Restoration under Order 9 Rule 4 of the Code may not, in all cases, require even notice to the other side whereas a notice to the other side becomes necessary while dealing with the restorations under Order 9 Rule 9 of the Code. 18. Dismissal of Mst. Janas suit when the counsel appearing for both the parties had reported `No instructions was even otherwise unwarranted, in that, in cases where the Advocates report `No instructions on behalf of one or the other party, the Courts should ordinarily issue notice to the parties to report instructions in the matter, for the absence of a notice to the parties on their Advocates report "No Instructions" is likely to result in failure of justice and multiplicity of litigation. 19. 19. In view of the facts and circumstances of the case, and for all what has been said above, the application filed by Mst. Jana within the period prescribed by the law of limitation, required a liberal approach to advance the cause of justice for deciding the rights of parties claimed in the landed property in dispute. 20. Learned Munsiff has thus erred in rejecting the petitioners application. 21. This petition therefore succeeds and Munsiff, Dangiwachas order of February 12, 1998 is set aside. Resultantly, the petitioners application shall stand allowed restoring the suit to its original number.