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2014 DIGILAW 374 (HP)

Dila Ram v. Sunder Ram

2014-04-10

DHARAM CHAND CHAUDHARY

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Judgment Dharam Chand Chaudhary, J. Heard. 2. Challenge herein is to the order Annexure P-6 passed on 27th November, 2013 by learned Civil Judge (Junior Division), Court No.2, Ghumarwin, allowing thereby the application under Order 9 Rule 9 read with Rule 7 CPC and Section 5 of the Limitation Act filed by respondent No.1-plaintiff for restoration of the suit dismissed-in-default on 31st December, 2010. 3. The order of dismissal of the suit was sought to be set aside and quashed on the following grounds:- “3. That the applicant/plaintiff has been directed by his counsel to appear in the case occasionally and when called by the counsel on the hearing and due to this reason the applicant/plaintiff could not appear in the ld. Court on the date 31.12.2010 and thereafter also and remained under impression that his counsel will call him on the hearings whenever he required. 4. That the circumstances, the applicant/ plaintiff could not put his appearance in the Ld. Court on dated 31.12.2010 on the date of hearing with the above mentioned bonafide belief and the counsel of the then applicant also could not appear in the Ld. Court, on the said date of hearing since he was busy in another court at that time and it is only on 14.12.2012 the applicant/plaintiff came to know of the fact of the dismissal of the suit and proceeded of him against exparte in the counterclaim, when the defendants threatened to forcibly occupy the land of the applicant/plaintiff and stated that the plaintiff has already been proceeded exparte in the counter claim, then the applicant on 14.12.2012 came to Ghumarwin court and engaged other present counsel and applied for the copy of the impugned order, which was supplied on 15.12.2012 to the applicant and then he came to know of the fact of dismissal of the suit and proceeded of him as exparte in the counterclaim,. Hence the present application is being filed without any delay thereafter, hence the application is within limitation from the date of knowledge.” 4. The petitioner-defendant has contested the application. In reply thereto it was submitted that the absence of respondent-plaintiff on 31.12.2010 was willful and intentional, besides, he being negligent in pursuing the suit. On the question of delay also it is submitted that no plausible explanation has come on record, hence the delay cannot be condoned. 5. The petitioner-defendant has contested the application. In reply thereto it was submitted that the absence of respondent-plaintiff on 31.12.2010 was willful and intentional, besides, he being negligent in pursuing the suit. On the question of delay also it is submitted that no plausible explanation has come on record, hence the delay cannot be condoned. 5. Learned trial Judge framed the following issues in the application:- 1. Whether there are sufficient grounds for condonation of delay in filing application under Order 9 Rule 9 CPC and under Order 9 Rule 7 CPC, as alleged for? OPA 2. If the issue No.1 is proved in affirmative, whether there are sufficient grounds for restoration of Civil Suit No.115/1 of 2004 and setting aside of exparte order dated 31.12.2010 in counter claim No.668/1 of 2005/04, as prayed for? OPA 3. Whether the application is not maintainable, as alleged? OPR 4. Whether the applicant is estopped to file the present application on account of his acts and conduct, as alleged? OPR 5. Relief. 6. The respondent-plaintiff has himself stepped in the witness box as PW-1. In rebuttal thereto, the petitioner-defendant has also examined himself. Learned trial Judge after hearing the parties has arrived at a conclusion that there are sufficient grounds to set aside the order whereby the suit was dismissed in default on condonation of delay. 7. The legality and validity of the impugned order has been questioned before this Court on several grounds, however, mainly that the Court below has not appreciated the pleadings and the evidence produced by both the parties and has erroneously passed the impugned order, which has resulted in miscarriage of justice to the petitioner-defendant. 8. I have heard learned counsel on both sides and also gone through the record. 9. True it is that the respondent-plaintiff has filed the application for setting aside the exparte order passed in the main suit after expiry of the period of nearly two years. The explanation as set out in the application was that learned counsel representing him had advised not to come on each and every date of hearing and that as and when his presence is required, he will be informed accordingly. The suit was listed on 31.12.2010 in the trial Court. The explanation as set out in the application was that learned counsel representing him had advised not to come on each and every date of hearing and that as and when his presence is required, he will be informed accordingly. The suit was listed on 31.12.2010 in the trial Court. On inquiry made by the respondent-plaintiff on 14.12.2012, when the petitioner defendant made an attempt to encroach upon the suit land, the counsel informed that the suit was dismissed in default on 31.12.2010 as he failed to appear on that date. The respondent-plaintiff while in the witness box has made similar statement. 10. The evidence produced on both sides is equally balanced because while the respondent-plaintiff has supported the case as set out in the plaint, the petitioner-defendant has come forward with the version that the plaintiff was throughout negligent in pursuing the case and was intentionally and deliberately absent on 31.12.2010. It cannot be believed by any stretch of imagination that the respondent-plaintiff was not interested to pursue the case as had it been so why he would have filed the application for restoration of the suit to its original number and file after two years. The explanation that as per the advise of learned counsel, he had not been attending the hearing on each and every date also seems to be plausible. 11. Further explanation that he inquired about the fate of the suit when on 14.12.2012, the petitioner-defendant tried to cause interference in the land in dispute is supported by his statement made while in the witness box. No doubt, he seems to be not informed by learned counsel also about the dismissal of the suit in default. The fault in this behalf is on the part of the counsel and as such he cannot be made to suffer for that. 12. No doubt, he seems to be not informed by learned counsel also about the dismissal of the suit in default. The fault in this behalf is on the part of the counsel and as such he cannot be made to suffer for that. 12. True it is that the delay as occurred in filing the application has resulted in a valuable right in favour of the petitioner-defendant and such right normally could not have been taken away, however, in the case in hand when the delay stands satisfactorily explained and also that at this stage it is the question of restoration of the original suit dismissed in default, this Court feels that the restoration thereof to its original number and file would serve the ends of justice because the adjudication of the controversy on merits would not only be in the ends of justice but also in the interest of both the parties. Reliance has also been placed on the judgment of Hon’ble Apex Court in Maniben Devraj Shah versus Municipal corporation of Brihan Mumbai, AIR 2012, SC 1629, and that of this High Court in Geeta Ram versus Punjab Singh, Latest HLJ 2011 (HP) 1041, however, in the given facts and circumstances discussed hereinabove, with due regard to the law laid down therein, the same is not applicable in the present case. Therefore, petition is dismissed, so also the pending application, if any.