Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1426 (PNJ)

Sukhdev Singh v. Maghar Singh

2013-10-29

S.P.BANGARH

body2013
JUDGMENT Mr. S.P. Bangarh, J. (Oral) - Bachan Kaur, predecessor-in-interest of respondents Nos. 1 to 8 filed civil suit No. 161 of 14.06.2003 before the trial Court against the petitioners and respondent No. 9, that was dismissed in default on 03.12.2008. Bachan Kaur, filed an application for restoration of the suit. In the application, it was averred that she was represented by Sh. Sukhjinder Singh Aulakh, Advocate at Mansa, who on that day i.e. 03.12.2008 had some urgent work in court at Mansa and could not come to the trial Court. The plaintiff appeared in the Court and was informed of the date fixed as 12.03.2009 and this date was informed by the plaintiff to her counsel. On 11.03.2009, the plaintiff went to the office of her counsel and asked him to appear in the trial Court on 12.03.2009, but the counsel expressed his inability to conduct the case at Budhlada Court. Therefore, the plaintiff engaged Sh. Sushil Bansal, Advocate at Budhlada in the case. 2. When the counsel appeared in the Court for producing his power of attorney, then the suit was not listed for hearing. On inquiry, it was found that the same was dismissed in default on 03.12.2008, whereas, on that date, the plaintiff had appeared in the Court and was informed of the next date fixed as 12.03.2009. So, it was prayed that the suit may be restored. 3. This application was opposed by the petitioners by filing written reply, thereto, wherein, apart from taking preliminary objections of concealment of facts, it was averred that on 03.12.2008, neither the plaintiff nor her counsel appeared in the trial Court and, as such, due to their absence, the suit was dismissed in default on 03.12.2008. The application has been filed to prolong the proceedings and to harass them. Rest of the averments contained in the application were denied and a prayer for dismissal, thereof, was made. 4. Respondent No.9-Sant Kaur also filed a separate reply and reiterated the averments made by the petitioners in their joint reply. She also made prayer for dismissal, thereof. 5. On the pleadings of the parties, following issues were framed:- “1. Whether there are sufficient grounds to restore the suit? OPA. 2. Whether the application is within limitation? OPA. 3. Whether the application is not maintainable? OPR. 4. Relief.” 6. She also made prayer for dismissal, thereof. 5. On the pleadings of the parties, following issues were framed:- “1. Whether there are sufficient grounds to restore the suit? OPA. 2. Whether the application is within limitation? OPA. 3. Whether the application is not maintainable? OPR. 4. Relief.” 6. The applicant examined Maghi Singh as AW-1 and closed the evidence, while the respondents examined Dhanna Singhpetitioner No.2, herein, as RW-1 and closed the evidence. 7. After hearing both the sides, learned trial Court decided issues Nos. 1 and 2 in favour of respondents (petitioners and respondent No.9, herein) and against the applicant-Bachan Kaur (predecessor-in-interest of the respondents Nos. 1 to 8, herein); issue No.3 in favour of Bachan Kaur and against the petitioners and respondent No.9, herein, and dismissed the application vide order dated 17.03.2012 (Annexure P-3). 8. Aggrieved against the same, Bachan Kaur filed civil appeal No. 52 of 31.05.2012, that was allowed by the Appellate Court, subject to payment of Rs.5000/- as costs, vide order dated 19.08.2013 (Annexure P-4). 9. Aggrieved against the same, the petitioners, who are defendants Nos. 1 to 3 before the trial Court, have come up in this revision with prayer for acceptance, thereof, and for dismissal of application under Order IX Rule 9 CPC, that was dismissed by the trial Court vide order dated 17.03.2012 (Annexure P-3), and for setting aside the impugned order (Annexure P-4) dated 19.08.2012, whereby, the application under Order IX Rule 9 CPC, that was filed by Bachan Kaur, was allowed. 10. Learned counsel for the parties have been heard and record perused with their assistance. Learned counsel for the petitioners wrongly contended that the appeal against the impugned order was not maintainable before the Additional District Judge, while on the contrary, it has been enshrined under Order 43 Rule 1 (c) CPC, that an order under Order IX Rule 9 CPC rejecting the application for an order to set aside the dismissal of the suit shall lie. 11. Vide order dated 03.12.2008, the suit was dismissed in default, manifestly in terms of Order IX Rule 8 CPC., the plaintiff noted the date as 12.03.2009. No motive can be ascribed to the plaintiff to make false averment. It must follow that there was no intentional absence of the plaintiff in the suit. She was not to gain anything out of this dismissal. No motive can be ascribed to the plaintiff to make false averment. It must follow that there was no intentional absence of the plaintiff in the suit. She was not to gain anything out of this dismissal. The Appellate Court observed that the perusal of the record reveals that since 26.05.2005 the matter was pending for awaiting order of this Court and as per zimni order dated 04.06.2008, Sh. Sharma, Advocate appeared for respondents Nos. 1 and 2 and the matter was fixed for service of respondent No.4. 12. On 26.11.2008, Sh. Sanjeev Mittal, Advocate filed memo of appearance on behalf of defendant No. 4 (Sant Kaur) and the matter was adjourned for filing written statement on behalf of latter and not for any proceedings to be conducted by the plaintiff (Bachan Kaur). 13. AW-1 reiterated the averments contained in the application. Since the plaintiff-Bachan Kaur was prosecuting the suit since 09.06.1999, she could not afford to remain intentionally absent from appearing in the suit. 14. Additional District Judge, Mansa observed that the suit was mature for final arguments, that indeed was fixed for rebuttal and arguments. Normally, when the suit reaches at the stage of rebuttal evidence or arguments, it should not be dismissed in default. While on the contrary, it should be decided on merit. Even, application for additional evidence was dismissed in the suit before fixing the suit for rebuttal evidence and arguments, as observed by the Additional District Judge, Mansa. 15. So, the suit was required to be decided on merit, instead of dismissing the same in default. Even, if it has been dismissed in default, the same should have been restored when the plaintiff filed application before the trial Court by holding that the plaintiff could not afford to intentionally remain absent from the proceedings, especially, when the suit had reached at the stage of arguments. 16. Indeed, had trial Court decided to accept the application and restored the suit at its original number of institution and heard the arguments, therein, the same would have been done by now and the suit would have been disposed of on merit. 17. Reliance can be placed upon Sukhinder Singh & Ors. 16. Indeed, had trial Court decided to accept the application and restored the suit at its original number of institution and heard the arguments, therein, the same would have been done by now and the suit would have been disposed of on merit. 17. Reliance can be placed upon Sukhinder Singh & Ors. v. Gurbux Singh & Ors; 2010 (7) RCR (Civil) 1177; wherein, it was held that when a suit is dismissed in default at the stage of final arguments, it is appropriate to restore the suit and decide the same on merits. 18. Reliance can also be placed upon the judgment passed by the Hon’ble Supreme Court in International Airports Authority of India v. M.L. Dalmia & Co. Ltd; 2002 (2) JT 172 ; wherein, it was observed that the appellant did try to explain the absence on 10.07.2001, but the explanation so offered did not appeal as plausible to the High Court, especially in view of the earlier conduct of the appellant which weighed heavily with the High Court resulting in denial of indulgence being shown to the appellant. It was held that looking at the stakes involved and keeping in view the weighty consideration that so far as practicable, a litigant ought not be denied a hearing on merits, we are inclined, in the facts and circumstances of this case, to allow the appellant one more opportunity of hearing in the appeal on merits by restoring the same on the file of the High Court, but subject to terms. 19. Reliance can also be placed upon the judgment passed by this Court in State of Punjab v. Harjit Singh; 2007 (5) RCR (Civil) 454; wherein, it was held that it would be in the interest of justice, if the suit is restored, so that the parties are able to get decision on merits. It was also held that the absence of the plaintiff cannot be said to be on account of any lack of bona fide, may be the plaintiff was not vigilant enough to prosecute the suit as may be required. 20. The Appellate Court rightly held that the suit should be decided on merit, especially when there is no mala fide on the part of the plaintiff. The rejection of the application of the plaintiff has certainly resulted into miscarriage of justice, especially when the suit had already reached at the stage of arguments. 20. The Appellate Court rightly held that the suit should be decided on merit, especially when there is no mala fide on the part of the plaintiff. The rejection of the application of the plaintiff has certainly resulted into miscarriage of justice, especially when the suit had already reached at the stage of arguments. The Appellate Court rightly set aside the order of the trial Court subject to payment of Rs.5000/- as costs, and ordered the restoration of the suit for final disposal, after hearing arguments of both the sides. 21. There is, thus, no illegality or impropriety in the impugned order; the petitioners and respondent No.9 have been compensated with the costs for inconvenience faced by them by these proceedings. So, the impugned order dated 19.08.2013 (Annexure P-4) is, hereby, upheld and affirmed, as the same does not suffer from any illegality or impropriety. Resultantly, the civil revision fails and is, hereby, dismissed. ---------0.B.S.0------------