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Himachal Pradesh High Court · body

2019 DIGILAW 580 (HP)

Rama Nand v. Kuldeep Bansal

2019-05-10

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition, petitioner has prayed for the following reliefs:- "1. Allow the present application and set aside the order dated 18-7-2018 passed by Ld. Civil Judge Senior, Nahan, in CMA No. 91/6 of 2014. 2. To pass any order or further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case." 2. Brief facts necessary for adjudication of the present petition are that a Civil Suit filed by the present petitioner for specific performance of contract, which was filed somewhere in the year 2010, stood dismissed in default for non-prosecution on 25.02.2014 by the Court of learned Civil Judge (Senior Division), Sirmaur District at Nahan. Order dated 25.02.2014 is quoted herein-below:- "Rebuttal evidence not present. Case called several times, but neither the plaintiff, nor any counsel appeared on his behalf. It is already 2.50 PM. Accordingly, the suit of the plaintiff is dismissed in default, for non-prosecution. The file after completion be consigned to record room." 3. Aggrieved by the same, petitioner filed an application under Order 9, Rule 9 read with Section 151 of the Code of Civil Procedure, praying for recalling of the said order. The application alongwith application filed under Section 5 of the Limitation Act for condonation of delay in filing the application for recalling order, stand rejected vide impugned order. 4. Learned Counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law as the same is harsh and the findings returned therein are not borne out from the record of the case. On the other hand, learned Counsel for the respondents has argued that there is no merit in the present petition as learned trial Court has rightly dismissed the applications which were filed after an inordinate delay and that too without any cogent explanation. 5. I have heard learned Counsel for the parties and also gone through the impugned order as well as the record of the case. 6. As I have already observed above, the suit was dismissed on 25.02.2014. The application for recalling said order was filed in September, 2014. 5. I have heard learned Counsel for the parties and also gone through the impugned order as well as the record of the case. 6. As I have already observed above, the suit was dismissed on 25.02.2014. The application for recalling said order was filed in September, 2014. The reason mentioned in the application as to why no one appeared for prosecuting the case on 25.02.2014 was that the applicant/petitioner was suffering from ailment and as he could not apprise his Counsel of the said fact, the same led to non-appearance of Counsel in the Court, which ultimately resulted in dismissal of the suit for non-prosecution. 7. Learned trial Court while dismissing the said plea of the petitioner held that the application was filed for setting aside the order of dismissal of the suit in default after about seven months and no cogent explanation was given as to why the application could not be filed within reasonable period. The explanation which was given by the applicant before the learned trial Court was disbelieved by the learned Court below and it held that if a party is found to be negligent or there is want of bonafide, then delay cannot be condoned and application cannot be allowed. 8. In my considered view, order passed by learned Court below is harsh. Though, the application for setting aside the order vide which the suit was dismissed in default was filed after about seven months but such a delay cannot be said to be inordinate delay. 9. Besides this, the Court has to understand that whenever applications are filed by the parties for the purpose of explanation of delay, the Court cannot accept that each and every word contained in the application per se would be substantiated by the applicant, because it is common knowledge that majority of contents of such like applications are dictated on legal solicitation so given to the party concerned. In these circumstances, the Court has to be slightly sensitive and in case the delay is not that inordinate and the other party can be monetarily compensated, then the Court rather than following a hyper technical approach has to follow a approach which is more humane and justice oriented. 10. In view of above discussion, petition is allowed. Order dated 18.07.2018, passed in CMA No. 91/6 of 2014, as also order dated 25.02.2014, passed by learned Civil Judge (Sr. 10. In view of above discussion, petition is allowed. Order dated 18.07.2018, passed in CMA No. 91/6 of 2014, as also order dated 25.02.2014, passed by learned Civil Judge (Sr. Division), Sirmaur District at Nahan, are quashed and set aside and the Civil Suit is ordered to be restored to its original number, with the direction to the learned Court below to adjudicate the same on merit, subject however to payment of cost of ` 20,000/- by the petitioner to the respondents. Parties through their learned Counsel are directed to appear before the learned trial Court on 10.07.2019. It is clarified that in case cost is not paid by the petitioner to the respondent by way of Bank Draft on the date so fixed, then the order passed by learned trial Court dated 25.02.2014, shall automatically become operative. In other words, even a single day shall not be granted by the learned trial Court to the petitioner for payment of amount of cost in addition to time granted by this Court. 11. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.