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2017 DIGILAW 1843 (RAJ)

Neelam v. Legal Representatives of Arjun Bhai

2017-08-17

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : Virendra Kumar Mathur, J. This Civil Restoration Application has been filed under Order 41, Rule 17 CPC for restoring Civil First Appeal (No.491/2009) filed by the appellant, by recalling order dated 04.09.2013 of this Court and 25.09.2013 passed by the Deputy Registrar (Judicial). 2. Briefly stated, feeling aggrieved by the judgment & decree dated 17.07.2009 passed by the Additional District Judge, Bali camp at Sumerpur, District Pali in Civil Original Suit No.10/1999 (Arjun Bhai v. Smt Neelam & others), the appellant filed regular civil First Appeal, which was registered as Civil First Appeal No. 491/2009. The appeal was admitted on 05.12.2009 and notices were issued to the contesting-respondent No.1 on 29.11.2011. The Court gave liberty to the contesting respondent to withdraw the decretal amount, which was deposited by the appellant, after furnishing solvent security to the equal amount before the court. 3. It was also submitted that an application under Order 22, Rule 4 CPC was filed for bringing legal representatives of Arjun Bhai on record, who expired on 17.05.2012. The application was allowed on 16.08.2012 but notices for respondents No. 1/1 to 1/4 were received un-served. The Court on 08.08.2013 directed to file fresh notices within a period of two weeks with fresh addresses. It was stated that on 04.09.2013 the Court passed a peremptory order to file fresh PF and notices within one week. As per office report, PF and notices were filed within time, however, notices under Order 41, Rule 14 CPC were not filed and therefore, the appeal was dismissed in consequence to peremptory order. 4. It was stated that the dismissal order was passed without knowledge of the counsel for the appellant and it was bona fide mistake on the part of counsel for the appellant. The appellant has complied with the order passed by this Court on 29.11.2011, however, legal representatives of respondents filed an application for disbursement of the decretal amount, which is pending before the Additional District Judge, Sumerpur. When said application was listed before the court below and the appellant enquired about status of present appeal then he came to know that the case has already been decided. 5. It was stated that thereupon the appellant immediately contacted his counsel on 15.12.2016 and then it came to knowledge of the counsel that the present case has already been decided. 5. It was stated that thereupon the appellant immediately contacted his counsel on 15.12.2016 and then it came to knowledge of the counsel that the present case has already been decided. The counsel for the appellant on 15.12.2016 applied for certified copy of the order, contacted the appellant and told him about peremptory order and the dismissal of the First Appeal for non-prosecution. 6. It was stated that due to bona fide mistake on the part of counsel for the appellant, who could not be present before the Deputy Registrar (Judicial), the appellant should not be made to suffer. Therefore, order dated 21.09.2013 and 25.09.2013 may be recalled and the Restoration Application filed by the appellant may be allowed. 7. Notices were issued on the Restoration Application as also on the application filed under section 5 of the Limitation Act. Notices were served on the respondents. The respondents took time to file reply, on 16.02.2017, 23.02.2017, 24.03.2017, 18.07.2017 and 04.08.2017 but no reply has been filed till today and no one has appeared for respondents. 8. Heard the counsel for the appellant-applicant. 9. For the reasons stated in the condonation application, delay in filing the Restoration Application is condoned. 10. On 29.11.2011, it was submitted on behalf of the appellant that she has already deposited the decretal amount in the trial court and the respondent was allowed by the Court to withdraw the amount on filing solvent security equivalent to the decretal amount before the trial court. Later on, an application under Order 22, Rule 4 CPC was filed for taking on record legal representatives of Arjun Bhai, who died on 17.05.2012 and that application was allowed on 06.08.2012. 11. The notices for respondents No.1/1 to 1/4 were received un-served. The Court on 08.08.2013 directed the appellant to file fresh notices within period of two weeks with fresh addresses. Again on 04.09.2013, last opportunity was given to file the notices within a week, failing which the appeal will be liable to be dismissed without reference to the Court. The Office report discloses that PF and notices under Order 22, Rule 4 CPC were filed on 05.09.2013 for respondents No. 1/1 to 1/4 but notices for admission under Order 41, Rule 14 were not filed and therefore, on 25.09.2013 the appeal was dismissed by the Deputy Registrar (Judicial) in compliance of order dated 04.09.2013. The Office report discloses that PF and notices under Order 22, Rule 4 CPC were filed on 05.09.2013 for respondents No. 1/1 to 1/4 but notices for admission under Order 41, Rule 14 were not filed and therefore, on 25.09.2013 the appeal was dismissed by the Deputy Registrar (Judicial) in compliance of order dated 04.09.2013. It was fault of the advocate concerned that he did not file proper notices. 12. Learned counsel for the appellant argued that on account of fault on the part of the counsel, the party should not be made to suffer. In support of his contention, he relied on judgment of this Court in Rajasthan State Industrial Development & Investment Corporation Ltd, Jodhpur v. M/s Modi Thread Mills, Jodhpur reported in 2003 (3) WLC (Raj) 44, in which the Court held that appeal dismissed for non-compliance with the order of the court for fault on the part of the counsel. The fault on the part of the counsel is unfortunate yet the party should not suffer for the fault of the counsel. He also placed reliance on judgment of the Apex Court in Rafiq & anr. v. Munshilal & anr., reported in AIR 1981 SC 1400 , that the party should not be made to suffer for the misdemean or inaction on the part of the counsel. In that judgment, the Court also observed that the words "sufficient cause" occurring in Order 41, Rule 19 CPC have to be interpreted liberally. In the opinion of the Court little more sensitive approach is required to be adopted by the courts in the process of dispensation of justice. It is not at all desirable to drive out a party out of court by way of punishment for whatever reason. It will also not be fair to attribute everything to the lawyers for any sort of fault. While the Legislature has provided a provision for dismissal of a proceeding for default, it has also provided provision for restoration. It will be travesty of justice if the court fails to exercise the power in restoring the proceedings except in rare and for exceptional reasons. It has always been anxiety of the court to decide an issue on merit instead of driving out a party from the court for one or the other technical reason. 13. It will be travesty of justice if the court fails to exercise the power in restoring the proceedings except in rare and for exceptional reasons. It has always been anxiety of the court to decide an issue on merit instead of driving out a party from the court for one or the other technical reason. 13. In the present matter, the appellant has deposited all the decretal amount, which has been withdrawn by the respondent as per conditions laid down by this Court. Now only issue of interest and merits are to be decided. In the opinion of the Court, the matter should not be thrown out at the cost of justice. In view of this, this Restoration Application is allowed and the order dated 25.09.2013 is recalled. 14. The appeal be restored to its original number. 15. The appellant is permitted to file fresh notices for admission under Order 41, Rule 14 CPC also. 16. On filing the same, Office shall issue the notices under Order 22, Rule 4 CPC and notices for admission to the respondents.