Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 177 (JK)

Syed Tassawur Jallali v. Zamrooda (Mst. )

2013-04-02

DHIRAJ SINGH THAKUR

body2013
1. This Civil Revision Petition has been preferred against the judgment and order dated 26th June, 2013, passed by the learned 2nd Additional Munsiff, Srinagar, whereby he has allowed the application for condonation of delay and restored the suit to its original number, which suit had been dismissed in default on 15th June, 2011 2. The learned counsel for the petitioners urged that the restoration has been ordered without there being any formal notice to the non-applicants-petitioners which was a prerequisite before restoration of the suit. He urged that the court below had restored the suit only on the basis of the orders passed in the condonation of delay application without any formal notice in the main application for restoration. Additionally, he urged that the court below had not appreciated that the restoration could be ordered only if the court was satisfied that there was sufficient cause for non-appearance of the plaintiffs and that it could not be ordered mechanically. 3. Revision petition has been opposed by the counsel for the respondents. 4. Heard counsel for the parties and perused the records. From a perusal of the records it appears that the suit was dismissed in default on 15th June, 2011. Knowledge about the dismissal of the suit is attributed on 12th November, 2011, where-after the application was filed for obtaining certified copy of the dismissal order which was furnished on 14th November, 2011. 5. From the application it transpires that the failure is attributed to the counsel for not attending the case when the same was called for hearing. Further it is stated that the failure on the part of the counsel to convey the later developments in the case should not ordinarily prejudice a party. 6. The court below has allowed the application for condonation of delay and also the application for restoration of the suit. From the order impugned, it appears that notices were issued in the application for condonation of delay. However, despite service the non applicants 1 and 3 failed to appear before the trial court whereas non-applicants 4 and 5 after appearing chose to remain absent. Consequently, exparte proceedings were initiated against the non-applicants on 2nd March, 2013. From the order impugned, it appears that notices were issued in the application for condonation of delay. However, despite service the non applicants 1 and 3 failed to appear before the trial court whereas non-applicants 4 and 5 after appearing chose to remain absent. Consequently, exparte proceedings were initiated against the non-applicants on 2nd March, 2013. While the court below did give an opportunity to the non-applicants to oppose the application for condonation of delay accompanying the restoration application, no such opportunity was required to be given after disposal of the condonation of delay application, inasmuch as on the date of dismissal of the suit none of the parties or their counsel were present before the court below. There is, thus, no illegality committed by the court below in ordering restoration of the suit without issuing a formal notice to the non-applicants-petitioners after disposal of the condonation of delay application. 7. The other ground urged by the counsel for the petitioners was that the application has been allowed mechanically on the basis of an application for restoration which did not at all provide any ground based upon which the court could be satisfied that a case for restoration had been made out in terms of Order IX Rule 4 of the Code of Civil Procedure. It is true that the application for restoration filed by the plaintiffs is not happily worded and is, in fact, cryptic. However, the facts remains that a party having engaged a counsel expects that he should discharge his onerous responsibility and follow the case in a court of law whenever case is fixed for hearing. There is an express promise and assurance which accompanies the engagement of a counsel by a litigant. If a counsel betrays that promise, a litigant certainly cannot be held responsible. A litigant, having filed a civil suit before the court of law, would expect the same to be taken to its logical conclusion and ordinarily would not gain anything by first filing the same and then deliberately allow it to be dismissed followed by an effort by him to seek its restoration. Courts of law, therefore, have adopted a liberal attitude in such matters and want cases to be decided on merits. The ends of justice are better served if parties are given adequate opportunity to prove the case before a court of law. 8. Courts of law, therefore, have adopted a liberal attitude in such matters and want cases to be decided on merits. The ends of justice are better served if parties are given adequate opportunity to prove the case before a court of law. 8. The court below has placed reliance upon various judgments as reported in KLJ 2000 369 : JKJ Soft JKJ/8465 (Miss Priya v. Gurcharan Singh and ors) and 2005(1) SLJ 102 : 2010 (4) JKJ 346 [HC] (M/S Purolator Ltd. v. State of Jammu and Kashmir and another), to the effect that for the negligence of the counsel a litigant cannot be made to suffer. 9. The view taken by the court below in restoring the suit does not suffer from any illegality. This petition is, therefore, found to be without any merit and is, accordingly, dismissed along with connected CMP. 10. Record be sent back to the court below.