Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 374 (HP)

Sunil Kumar v. Mohinder Kumar

2015-04-20

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This petition is instituted against the order dated 25.2.2015, rendered by the learned Civil Judge (Jr. Divn.)(II), Kangra at Dharamshala, H.P. in CMA No. 0000499/2014 in Civil Suit No. 527 of 2013. 2. Key facts, necessary for the adjudication of this petition are that the respondent-plaintiff (hereinafter referred to as the plaintiff) has instituted a suit against the petitioner-defendant (hereinafter referred to as the defendant), to the effect that he was owner-in-possession over the suit land comprised in Khata No. 188, Khatauni No. 261, Kh. No. 952, total measuring area 00-00-46 Hects. and land comprised in Khata No. 195, Khatauni No. 268, Kh. No. 1961/953, total measuring area 00-06-23 hect., both situated in Mohal and Mauza Shahpur, Tehsil Shahpur, Distt. Kangra, H.P., as per jamabandi for the year 2009-10. However, the defendant who is the owner-in-possession of adjacent land comprised in Khata No. 201, Khatauni No. 274, Kh. No. 1962/953, total measuring area 00-01-26, situated in Mohal and Mauza Shahpur, Tehsil Shahpur, Distt. Kangra, H.P, as per jamabandi for the year 2009-10, has no right and title to interfere and encroach the suit land and construct septic tank under the ground level and also to construct the building. The suit was also filed for permanent prohibitory injunction restraining the defendant from interfering and taking forcible possession of the suit land. 3. The written statement was filed by the defendant. The case came up before the trial Court on 12.5.2014. The next date was fixed for 13.6.2014. Since the plaintiff did not appear, the suit was dismissed for default. An application under Order 9 Rule 9 CPC was filed for setting aside the order dated 13.6.2014. The application was contested by the defendant. According to the averments made in the application, the matter was listed on 12.5.2014 and the Advocate on his behalf appeared and noted the next date of hearing as 15.6.2014. The Advocate came to the Court on 15.6.2014 and then he came to know that the suit was dismissed in default on 13.6.2014. According to the defendant, the next date of hearing was fixed for 13.6.2014 and not 15.6.2014. The application was allowed by the learned trial Court on 25.2.2015, hence this petition. 4. I have heard Mr. Sanjay Jaswal Advocate for the petitioner and gone through the impugned order dated 25.2.2015, carefully. 5. According to the defendant, the next date of hearing was fixed for 13.6.2014 and not 15.6.2014. The application was allowed by the learned trial Court on 25.2.2015, hence this petition. 4. I have heard Mr. Sanjay Jaswal Advocate for the petitioner and gone through the impugned order dated 25.2.2015, carefully. 5. The plaintiff-applicant has shown sufficient cause for his absence on 13.6.2014 since his Advocate had noted the next date as 15.6.2014. The plaintiff cannot suffer due to the negligence of his Advocate. Infact, his Advocate had appeared on 15.6.2014 and this fact has been admitted by the defendant in the reply filed to the application under Order 9 Rule 9 CPC. In such matters, liberal approach should be adopted to advance the cause of justice. 6. The learned Single Judge of the Delhi High Court, in the case of Sunder Kukreja and others vrs. Mohan Lal Kukreja and ors., reported in (2003(1) RCR 426, has held as follows: “[7] It transpires from the records that the records were inspected by the counsel engaged by the petitioners on 14.11.2000. The next date which was fixed for the suit was 22.11.2000. It is, however, stated in the application filed under Order 9 Rule 9 of the Code of Civil Procedure that on inspection of the said records, the courted noted the date as 27.11.2000 instead of 22.11.2000. Therefore, when the matter was called out 22.11.2000 none was present on behalf of the petitioners and accordingly the suit was dismissed for default in appearance. The application seeking for setting aside the order dt.22.11.2000 and restoration of the suit/petition to its original number was filed immediately thereafter i.e. on 29.11.2000. The said application was supported by the affidavit of the counsel of the petitioners, As. an objection was taken by the counsel for. the respondents that the said application was not supported by an affidavit of a duly authorised person, namely, any of the petitioners or their authorised agents, an affidavit has since been placed on records which is sworn by the petitioner No.1. Counsel Mr.Amit Chadha is also a counsels who is engaged by the petitioners. the respondents that the said application was not supported by an affidavit of a duly authorised person, namely, any of the petitioners or their authorised agents, an affidavit has since been placed on records which is sworn by the petitioner No.1. Counsel Mr.Amit Chadha is also a counsels who is engaged by the petitioners. It is true that earlier the application was not supported by an affidavit filed on behalf of the petitioners but the same was supported by an affidavit filed by the counsel, who has taken the responsibility on his shoulder for his nonappearance on behalf of the Petitioners. [8] Taking the entire facts and circumstances into consideration and also the fact that now the application is supported by an affidavit sworn by the petitioner No. 1 I am satisfied that there was sufficient cause and reason for nonappearance and that the petitioners cannot be allowed to suffer tor laches or lapses, even if there be any, on the part of the lawyer of the petitioners. I am, therefore, of the considered opinion that this application should be allowed in the interest of justice, which I hereby do subject, however to payments of costs of Rs.5,000/- payable by the petitioners to the respondent, through counsel, within six weeks. The order dt. 22.11.2000 dismissing the petition for default in appearance stands set aside and recalled and the suit is restored to its original number.” 7. There is no illegality or perversity in the order dated 25.2.2015, passed by the learned Civil Judge (Jr. Divn.) (II), Kangra at Dharamshala. H.P. 8. Accordingly, there is no merit in this petition. The same is dismissed, so also the pending application(s), if any.