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2015 DIGILAW 702 (MP)

Nathua v. Badri Prasad

2015-07-08

SUJOY PAUL

body2015
ORDER 1. This revision is directed against the order dated 15.12.2008 whereby the Miscellaneous Appeal of present applicant against order passed in Civil Suit No.3/2006 dated 7.4.2007 is dismissed. 2. Learned counsel for the applicant submits that for the mistake of the counsel, litigant cannot be permitted to suffer. He placed reliance on (2007)7 SCC 200 (Laal Devi and another v. Vanita Jain and others). He also relied on order of this Court passed in Civil Revision No.139/2006. 3. Learned counsel for the other side opposed the relief. 4. In Civil Revision No.139/2006 this Court recorded as under :- “Short facts of the case are that in the year 1988 petitioner filed a suit for declaration and permanent injunction, which was dismissed in default on 24.1.2002. An application under Order 9 rule 9 CPC for restoration of the suit, was dismissed on 22.3.1993 in default. Another application under section 151 CPC for restoration of said application, was also dismissed on 7.11.2002. Thereafter again an application was filed for restoration, which was dismissed on 29.3.2006, hence present petition has been filed. Learned counsel for the petitioner submits that petitioner is not heard on merits till so far. The suit and the applications were dismissed in default. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner be allowed. Shri Kamal Rochlani and Shri V. K. Bhardwaj, learned counsel for the respondents, submit that no illegality has been committed by the learned Court below in passing the impugned orders. It is submitted that right from beginning the petitioner was lethargic. It is submitted that no illegality has been committed by the learned Court below which can be corrected by this Court while exercising the revisional jurisdiction. From perusal of the record it is evident that undisputedly suit filed by the petitioner was dismissed on 24.1.2002 but one thing is there that petitioner is pressing one after another applications for restoration. Unfortunately all the time the applications filed by the petitioner were dismissed in default of appearance. In view of the fact that suit was filed in the year 1988, which was dismissed in the year 1992, petition filed by the petitioner is allowed and all the impugned orders are set aside and the suit filed by the petitioner is restored subject to payment of Rs.10,000/-. Parties are directed to remain present on 19.7.2010. In view of the fact that suit was filed in the year 1988, which was dismissed in the year 1992, petition filed by the petitioner is allowed and all the impugned orders are set aside and the suit filed by the petitioner is restored subject to payment of Rs.10,000/-. Parties are directed to remain present on 19.7.2010. With the aforesaid observations appeal stands disposed of.” 5. If the facts of this case are examined in juxta position to the facts of Civil Revision No.139/2006, it will be clear that there is a great similarity between the matters. The suit in Civil Revision No.134/2006 was also dismissed because of lethargy of the counsel. Same is the case here. Accordingly, I deem it proper to follow the same course which was adopted in said civil revision. 6. Resultantly, civil revision is allowed all the impugned orders are set aside and suit filed by the applicant is restored subject to payment of Rs.15,000/- as cost to the other side. Parties are directed to remain present before the Court below on 3rd August, 2015.