Research › Search › Judgment

Uttarakhand High Court · body

2020 DIGILAW 81 (UTT)

KAMLESH SAINI v. ASWANI KUMAR SAINI

2020-02-10

LOK PAL SINGH

body2020
JUDGMENT Hon'ble Lok Pal Singh, J. Civil revision, under section 115 of CPC, is directed against the order dated 18.02.2019 passed by the Civil Judge (Senior Division) Roorkee in Original Suit No. 154 of 2012, Smt. Kamlesh Saini & anr. vs. Ashwani Kumar, whereby the learned Trial Court has dismissed the recall application paper no. 68C. 2. Facts, leading to filing of the present revision, are that revisionists-plaintiff instituted Original Suit no. 154 of 2012 seeking decree of perpetual injunction against the defendant. Defendant filed his written statement and made counter claim against the plaintiff for cancellation of sale deed whereupon plaintiffs are relying. To rebut the averments of the counter claim, plaintiff filed written statement along with paper no. 29C with a prayer that written statement to the counter claim be taken on record but none appeared on behalf of the plaintiff, the trial court dismissed the application paper no. 29C in default vide order dated 16.08.2014. Consequently, revisionist moved another application paper no. 47C to recall the order dated 16.08.2014 but the same too stood dismissed in default by order dated 08.01.2016 then revisionist constrained to file application paper no. 51C to recall the order dated 16.08.2014. The revisionists were apprised to prefer an appropriate application to recall the order dated 08.01.2016, therefore, application paper no. 51C was dismissed as not pressed. Thereafter, revisionist filed another application paper no. 68C to recall the order dated 08.01.2016, trial court by impugned order dated 18.02.2019 dismissed the application on the ground that revisionists are delaying the hearing of the suit. 3. Heard learned counsel for the parties and perused the material available on record. 4. Perusal of the order sheets would reveal that most of the time revisionists did not appear before the trial court. Application paper no. 29C was dismissed in default on 16.08.2014, subsequently; another application was filed by the revisionists which was too dismissed as not pressed. 5. Learned counsel for the revisionists would submit that reasons assigned by the trial court in rejecting the application are unsustainable, as the previous counsel did not inform the revisionists/plaintiffs that their application was dismissed in default. It is contended that due to fault of the counsel of the revisionist, they should not made to suffer. 6. Learned counsel for the respondent would submit that the revisionists are adopting delaying tactics and deliberately not appearing in the court. It is contended that due to fault of the counsel of the revisionist, they should not made to suffer. 6. Learned counsel for the respondent would submit that the revisionists are adopting delaying tactics and deliberately not appearing in the court. There is no illegality in the impugned order which warrants no interference of this Court. 7. On a perusal of the order sheets, this Court is convinced that revisionists are trying to delay the hearing of the suit on one pretext and another. But, considering the fact that written statement has already been filed by the plaintiffs along with paper no. 29C, it would be appropriate that suit be decided on its merit instead of going to technicalities. 8. It is settled position in law that the court should made endeavour to decide the lis between the parties on merit, after giving full opportunity of hearing instead of deciding the lis ex-parte or without giving reasonable opportunity to contest the case on merit. [Ref. (2008) 5 SCC 209 Nahar Singh vs. Food Corporation of India] 9. In view of the above, order dated 16.08.2014 whereby application paper no. 29C was rejected as well as order dated 18.01.2016 are hereby recalled. In the interest of justice, application paper no. 29C stands allowed on payment of cost of Rs. 15,000/- to the respondents. Written statement filed by the revisionists/plaintiffs is taken on record. Plaintiffs shall pay an amount of Rs. 15,000/- to the defendants/respondents within 15 days from today. In case, cost imposed by this Court is not paid by the plaintiffs, order passed by the trial court shall stand revive. The Suit is pending since 2012, thus, trial court is directed to decide the suit preferably within six months from the date of production of certified copy of this order in accordance with law. 10. Civil revision stands allowed, accordingly.