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2016 DIGILAW 459 (HP)

Maja Unipac v. HP Financial Corporation Ltd.

2016-04-08

P.S.RANA

body2016
JUDGMENT : P.S.Rana, J. Present petition is filed for review of order dated 23.6.2014 passed by Hon’ble High Court of HP in civil suit No. 15 of 2011 title Ms Maja Unipac Vs. H.P Financial Corporation Ltd. It is pleaded that plaintiff evidence could not be produced in civil suit No. 15 of 2011 because courts were closed for winter vacation w.e.f. 11.1.2014 to 24.2.2014 and steps could not be taken due to vacation period. It is further pleaded that thereafter on 24.2.2014 major fire broke out in the sister concern of petitioner i.e. M/s Maja Health Care Kishanpura Baddi District Solan HP and in the fire total plant and machinery along with records and stocks etc were reduced to ashes causing loss to the tune of Rs. 15-20 crores. It is further pleaded that matter was reported to police station and FIR was lodged. It is further pleaded that M/s Maja Health Care happens to be sister concern of petitioner and is owned by same family which has established plaintiff firm. It is further pleaded that firm was duly insured with fire cover. It is further pleaded that Insurance Company appointed surveyor to assess actual loss and petitioner had to coordinate with architects, suppliers of machinery, bankers and chartered accountants. It is further pleaded that due to aforesaid facts petitioner could not take steps to summon witnesses in civil suit No. 15 of 2011. Prayer for review of order dated 23.6.2014 sought and prayer to restore civil suit No.15 of 2011 to its original number also sought. 2. Notice was issued to non-petitioner and learned counsel appearing on behalf of non-petitioner did not file any response to the petition. 3. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of non-petitioner and also perused entire records carefully. 4. Following points arise for determination in present petition. 1. Whether order dated 23.6.2014 passed in civil suit No. 15 of 2011 title M/s Maja Unipac Vs. H.P Financial Corporation is liable to be reviewed as alleged?. 2. Relief. Findings upon Point No.1 with reasons. 5. It is proved on record that civil suit No. 15 of 2011 was dismissed by Hon’ble High Court of HP on 23.6.2014 under Order XVII rules 2 and 3 read with Order IX rule 3 CPC in the presence of learned Advocate appearing on behalf of parties. 2. Relief. Findings upon Point No.1 with reasons. 5. It is proved on record that civil suit No. 15 of 2011 was dismissed by Hon’ble High Court of HP on 23.6.2014 under Order XVII rules 2 and 3 read with Order IX rule 3 CPC in the presence of learned Advocate appearing on behalf of parties. It is proved on record that in civil suit No. 15 of 2011 issues were framed by Hon’ble High Court of HP on 9.8.2012 and thereafter case was listed for plaintiff evidence on 10.10.2012, 30.10.2013, 11.4.2014 and 23.6.2014. It is proved on record that learned Advocate appearing on behalf of plaintiff stated before the Court that plaintiff is not coming forward to summon evidence in civil suit No. 15 of 2011 despite intimation given through registered A.D post. It is proved on record that thereafter Hon’ble High Court of HP vide order dated 23.6.2014 dismissed civil suit No. 15 of 2011 on the ground that plaintiff did not lead evidence despite opportunity granted. Hon’ble High Court of HP dismissed the suit under the provisions of Order XVII rules 2 and 3 read with Order IX rule 3 CPC and Hon’ble High Court of HP directed that plaintiff would be entitled to refund court fee in accordance with law. 6. Petition filed by petitioner for review of order dated 23.6.2014 is supported with affidavit. Non-petitioner did not file any response despite opportunity granted and learned Advocate appearing on behalf of non-petitioner submitted before court on dated 13.5.2015 that non-petitioner does not want to file any response. Affidavit filed by petitioner remained un-rebutted on record. In view of the fact that affidavit filed by petitioner remained un-rebutted on record court is of the opinion that it is expedient in the ends of justice to review order dated 23.6.2014. Review petition has been filed by petitioner within limitation. Civil Suit No. 15 of 2011 was dismissed on 23.6.2014 and review petition was filed on 28.8.2014 within three months from the date of order. It is well settled law that application for review may be necessitated by way of invoking doctrine of 'actus curiae neminem gravabit’. See Board of Control for cricket India and another Vs. Netaji Cricket Club AIR 2005 SC 592 . In view of the above stated facts point No.1 is answered in affirmative. Point No.2 (Relief). 7. It is well settled law that application for review may be necessitated by way of invoking doctrine of 'actus curiae neminem gravabit’. See Board of Control for cricket India and another Vs. Netaji Cricket Club AIR 2005 SC 592 . In view of the above stated facts point No.1 is answered in affirmative. Point No.2 (Relief). 7. In view of findings on point No.1 above petition is allowed subject to costs of Rs.3000/- (Three thousand). Order dated 23.6.2014 passed in civil suit No. 15 of 2011 is reviewed. Observations will not effect merits of case in any manner and will be strictly confined to the disposal of OMP No.362 of 2014. Civil Suit No. 15 of 2011 is restored to its original number subject to payment of costs. OMP No. 362 of 2014 is disposed of.