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2010 DIGILAW 2150 (PNJ)

Surinder Kaur v. Sameer Bhatia

2010-07-28

L.N.MITTAL

body2010
JUDGMENT L. N. Mittal, J. (Oral) :- Plaintiffs have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 18.09.2009 (Annexure P-6), passed by learned Civil Judge (Junior Division), Faridabad, thereby dismissing the application moved by the plaintiffs for restoration of the suit, which was dismissed in default. The petitioners have also impugned judgment dated 11.03.2010, passed by learned Additional District Judge, Fast Track Court, Faridabad, thereby dismissing appeal filed by the petitioners against order Annexure P-6 passed by the trial court. 2. Plaintiffs’ suit was dismissed in default on 12.04.2006. The plaintiffs moved application Annexure P-2 for restoration of the suit on 04.08.2007 alleging that their counsel in the trial court had assured the plaintiffs that he would inform them as and when their presence would be required and they need not come to the Court on every date of hearing. It was also alleged that plaintiff no.2, who is husband of plaintiff no.1, shifted his factory from Faridabad to Kapurthala and later on, both the plaintiffs also shifted their residence to Kapurthala. The plaintiffs came to Faridabad on 29.07.2007 and contacted their counsel and inquired about their cases. They were told that the suit had been dismissed in default on 12.04.2006, when their counsel also did not appear in the trial court. The plaintiffs were thus ignorant of the dismissal of the suit till 29.07.2007 and on coming to know of it, they filed restoration application. 3. I have heard learned counsel for the petitioners and perused the case file. 4. Learned counsel for the petitioners vehemently contended that petitioners are of old age. The contention is completely devoid of merit. No such plea was taken in the restoration application Annexure P-2 nor before the courts below. Even in the instant revision petition, a vague plea has been taken that petitioners are in their old age. However, the petitioners have not even taken the trouble of stating their age even in the revision petition nor there is any material on record to substantiate the plea that the petitioners are of old age. Moreover, new plea cannot be taken in revision petition for the first time. 5. The suit was dismissed in default on 12.04.2006, whereas restoration application was filed on 04.08.2007 i.e. almost 16 months after the suit was dismissed in default. Moreover, new plea cannot be taken in revision petition for the first time. 5. The suit was dismissed in default on 12.04.2006, whereas restoration application was filed on 04.08.2007 i.e. almost 16 months after the suit was dismissed in default. The only explanation for the nonappearance of the plaintiffs on the date fixed and for belated filing of the restoration application is that plaintiffs’ counsel had told them that he would inform them whenever their presence would be required, but the counsel did not inform them and the plaintiffs had shifted from Faridabad to Kapurthala. However, this contention cannot be accepted because the plaintiffs have not even mentioned in the restoration application or even in the instant revision petition as to when they shifted from Faridabad to Kapurthala i.e. whether before the suit was dismissed in default on 12.04.2006 or thereafter. Moreover, mere shifting from Faridabad to Kapurthala could not be a ground for non-appearance in the trial court. In addition thereto, it was the duty of the plaintiffs to have remained in touch with their counsel to know about the proceedings of the suit. Even if the plaintiffs had shifted to Kapurthala, it does not mean that they could not remain in touch with their counsel as means of communication are so fast and conveniently available these days. The plaintiffs have alleged that they were in telephonic contact with their counsel. If that were so, there is no reason for non-appearance of the plaintiffs in the trial court. Moreover, the plaintiffs have not alleged as to why their counsel also did not appear in the trial court on 12.04.2006. It is also not the plea of the plaintiffs that even after 12.04.2006, after the suit had been dismissed in default, their counsel had been telling them that the suit was still pending. There is, therefore, no proper explanation for the long delay of almost 16 months in filing the restoration application. 6. Reason for getting the suit dismissed in default and for belated filing of restoration application is not far to seek. The plaintiffs could not lead any evidence whatsoever even after availing three opportunities and it was last opportunity for their evidence on 12.04.2006. 6. Reason for getting the suit dismissed in default and for belated filing of restoration application is not far to seek. The plaintiffs could not lead any evidence whatsoever even after availing three opportunities and it was last opportunity for their evidence on 12.04.2006. Since the plaintiffs did not produce any evidence, they thought it proper to get the suit dismissed in default so as to avail the remedy of seeking restoration of the suit whenever they thought it fit or suitable to them, working under the impression that Courts are liberal in restoring the suit dismissed in default, as is also the contention advanced by counsel for the petitioners. However, liberal approach of the Court cannot be misused or abused by the litigant in the aforesaid situation. 7. It may also be added that plea of respondent is that in fact, compromise had been effected between the parties and for this reason, the suit was got dismissed in default in view of compromise. The application for condonation of delay was filed almost two years after filing of restoration application, which was hopelessly barred by limitation. 8. Learned counsel for the petitioners has relied upon a judgment of this Court in the case of Kanshi Ram vs. Haryana State and others reported as 2004 (3) L. J. R. 27. The facts of the said case are entirely different and are of no help to the petitioners in the instant case. 9. From the conduct of the petitioners, it is manifest that the suit was got dismissed in default intentionally and restoration application was filed after intentional delay of almost 16 months. No ground for restoration of the suit was made out. Both the courts below have dealt with the matter in correct perspective and there is no illegality in the impugned order of the courts below warranting interference in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is completely devoid of merit and is accordingly dismissed in limine. ------------