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2015 DIGILAW 1091 (HP)

Jai Singh v. Santo Devi

2015-08-13

P.S.RANA

body2015
ORDER P.S. Rana, J. Present civil revision petition is filed under Section 115 of the Code of Civil Procedure against the order dated 22.03.2014 passed by the learned Additional District Judge-I Shimla in Civil Misc. Appeal RBT No.06-S/14 of 2013/11 whereby the learned Additional District Judge-I Shimla upheld the order of learned trial Court dated 24.05.2011 announced in CMA No. 30/6 of 2008 tilted Narayan Singh vs. Smt. Santo Devi & Ors. BRIEF FACTS OF THE CASE 2. Sh. Narian Singh S/o Sh. Mansha Ram filed C.S. No. 114/1 of 2005 for decree of permanent prohibitory injunction against co-defendant Smt. Santu Devi restraining co-defendant No.1 from raising any construction over suit land comprised in khata No.16 min khatoni No.44 khasra number 231 measuring 0-01-96 as per missal Hakiyat settlement 2000-2001 up mohal Tudd Mahal Tudd (Teh.) Shimla (Distt.) Shimla H.P. Learned trial Court i.e. Civil Judge (Junior Division) Court No.4 Shimla H.P. dismissed civil suit in default for want of prosecution on dated 28.7.2008. Shri Narayan Singh filed application under Order 9 Rule 9 read with Section 151 CPC on dated 26.8.2008 for restoration of C.S. No.114/1 of 2005 tilted Narayan Singh vs. Smt. Santo Devi & Ors. which was dismissed in default for want of prosecution on dated 28.07.2008 by the learned trial Court. During pendency of the application Sh. Naraayan Singh died and his LRs were brought on record by the learned trial Court. It is pleaded that the civil suit was fixed for service of LRs of co-defendant No.3 on dated 28.07.2008. It is further pleaded that the learned trial Court on the previous date i.e. 05.06.2008 directed the plaintiff to file process fee and correct address for service of LRs of co-defendant No.3. It is further pleaded that thereafter the plaintiff contacted his Advocate on dated 05.06.2008 itself and was informed about the steps to be taken in the civil suit. It is further pleaded that thereafter the plaintiff could not contact his Advocate and consequently neither the plaintiff nor his Advocate could appear before the learned trial Court on dated 28.07.2008 when the case was called for hearing. It is further pleaded that the default was not intentional. It is further pleaded that the plaintiff was diligently prosecuting the case after the institution of the civil suit. It is further pleaded that co-defendant No.3 was proforma defendant in the civil suit. It is further pleaded that the default was not intentional. It is further pleaded that the plaintiff was diligently prosecuting the case after the institution of the civil suit. It is further pleaded that co-defendant No.3 was proforma defendant in the civil suit. Prayer for restoration of C.S. No.114/1 of 2005 sought. 3. Per contra response filed on behalf of the contesting defendants pleaded therein that the applicant has no cause of action to file the application under Order 9 Rule 9 CPC. It is further pleaded that the applicant was negligent. It is further pleaded that the applicant cannot be permitted to take advantage of his own omission. It is further pleaded that the applicant is estopped from filing the application. It is further pleaded that the application is time barred. It is further pleaded that no sufficient cause is mentioned in the application for restoration of C.S. No.114/1 of 2005 and prayer for dismissal of application sought. 4. As per pleadings of the parties learned trial Court framed following issues on dated 15.07.2010: 1) Whether there are sufficient grounds to set-aside the order dated 28.07.2008 vide which suit was dismissed in default? OPA 2) Whether the applicant has no cause of action to file the application as alleged? OPR 3) Whether the applicant is estopped from filing the present application as alleged? OPR 4) Whether the application is time barred as alleged? OPR 5) Relief. 5. Learned trial Court decided issues No. 1, 2 and 4 in negative and learned trial Court decided issue No. 3 in affirmative. Learned trial Court dismissed application filed under Order 9 Rule 9 CPC read with Section 151 CPC. Learned first appellate Court affirmed order of learned trial Court. 6. The applicant examined AW-1 Sh. Jai Singh as oral witness. AW-1 Sh. Jai Singh has stated that civil suit was dismissed in default on dated 28.07.2008. He has further stated that the learned trial Court had directed to bring on record LRs of co-defendant No.3. He has further stated that when he brought the correct address of LRs of co-defendant No.3 to his Advocate then he was informed that his case was dismissed in default on dated 28.07.2008. He has further stated that C.S. No.114/1 of 2005 be restored to its original status. He has further stated that when he brought the correct address of LRs of co-defendant No.3 to his Advocate then he was informed that his case was dismissed in default on dated 28.07.2008. He has further stated that C.S. No.114/1 of 2005 be restored to its original status. In cross-examination he denied the suggestion that he intentionally did not appear before the Court on the date of hearing. He has also denied the suggestion that there are no sufficient grounds to restore the C.S. No.114/1 of 2005. 7. No rebuttal oral evidence adduced by non-applicants. It is also proved on record that the civil suit was dismissed in default for non-prosecution by the learned trial Court under Order 17 Rule 2 of the Code of Civil Procedure 1908. Learned trial Court did not mention in order sheet whether C.S. No.114/1 of 2005 was dismissed under Order 17 Rule 2 or under Order 17 Rule 3 CPC. Learned trial Court did not proceed to decide the civil suit forthwith on merits. 8. Court heard learned Advocate appearing on behalf of the revisionists at length. None appeared on behalf of the non-revisionists despite service. Court also perused the entire records carefully. 9. Submission of learned Advocate appearing on behalf of the revisionists that there are sufficient grounds for non-appearance of the non-revisionists when the case was listed for hearing before the learned trial Court is accepted for the reasons hereinafter mentioned. It is well settled law that whenever a suit is dismissed under Order 17 Rule 2 CPC the same could be restored to its original number under Order 9 of the Code of Civil Procedure 1908. It is also well settled law that when the suit is disposed of by the learned trial Court under Order 17 Rule 3 CPC on merits then the aggrieved party is at liberty to file application for setting-aside the ex-parte decree. In the present case no ex-parte decree was passed by the learned trial Court. Hence it is held that the learned trial Court disposed of the present suit under Order 17 Rule 2 CPC. The present suit was dismissed in default on dated 28.07.2008 and restoration application was filed on 26.08.2008 within one month from the date of cause of action. 10. Hence it is held that the learned trial Court disposed of the present suit under Order 17 Rule 2 CPC. The present suit was dismissed in default on dated 28.07.2008 and restoration application was filed on 26.08.2008 within one month from the date of cause of action. 10. It is proved on record in the present case that the applicant had engaged Advocate to appear in the Court and Power of Attorney was filed on behalf of the applicant. It is well settled law that in civil suit parties are not expected to appear in person in all the civil proceedings. There was no direction from the learned trial Court to the revisionists to appear in the civil suit on dated 28.07.2008 in person. It is also well settled law that parties should not be penalized for the fault of learned Advocate. See 1983 Punjab Law reporter page 170 titled State of Patiala vs. Hakam Singh. Also see 1994 ACJ page 749 titled Shaikh Abdul vs. Aspy Beharam (High Court of Judicature at Bombay). 11. Non-revisionists did not adduce any rebuttal evidence. Non-revisionists did not appear in the witness box to rebut the testimony of revisionists. Hence adverse inference under Section 114(g) of the Indian Evidence Act 1872 is drawn against the non-revisionists in the present case. It was held in case reported in AIR 1999 Apex Court 1441 titled Vidhyadhar vs. Mankikrao that if a party did not enter into the witness box then adverse inference should be drawn against the party who did not enter in the witness box. Also see SLJ 1999 Apex Court 724 titled Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera. 12. In view of the fact that the civil suit was dismissed by the learned trial Court under Order 17 Rule 2 CPC and in view of the fact that restoration application was filed within one month from the date of cause of action and in view of the fact that codefendant No.3 was simply a proforma defendant and in view of the fact that no relief was claimed by the plaintiff against proforma defendant No.3 Court is of the opinion that it is expedient in the ends of justice to restore C.S. No.114/1 of 2005 to its original number in the ends of justice. 13. 13. In view of the above stated facts Civil Revision Petition No.69/2014 titled Jai Singh & Ors. vs. Santo Devi & Ors. is accepted and orders of learned trial Court and learned first Appellate Court announced upon application filed under Order 9 Rule 9 CPC are set-aside and application filed under Order 9 Rule 9 CPC is allowed in the ends of justice and C.S. No.114/1 of 2005 is restored to its original status subject to payment of costs of Rs. 1000/- (One thousand). Learned trial Court will restore C.S. No.114/1 of 2005 to its original status and thereafter the learned trial Court will dispose of C.S. No.114/1 of 2005 strictly in accordance with law expeditiously within two months because C.S. No.114/1 of 2005 is pending since 2005 and requires expeditious disposal. Parties are directed to appear before the learned trial Court on date 11.09.2015. Files of the learned trial Court and learned first Appellate Court along with certified copy of this order be transmitted forthwith. File of civil revision petition be consigned to record room after due completion. Civil Revision Petition No. 69/2014 is disposed of. Pending application(s) if any also disposed of. No order as to costs.