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2022 DIGILAW 925 (RAJ)

Budhi Singh v. Lrs Of Guljar Singh

2022-03-21

VINIT KUMAR MATHUR

body2022
ORDER 1. The present writ petition has been filed against the order dated 24.01.2018 passed by the Senior Civil Judge, Anupgarh District Sri Ganganagar, whereby, the application preferred under order 9 rule 4 read with Section 151 CPC was rejected. 2. Heard learned counsel for the parties. 3. Learned counsel for the petitioner submits that the petitioner-plaintiff preferred a suit for specific performance against the respondents-defendants which was decreed in his favour vide judgment dated 20.05.2005. However, aggrieved against the same, the respondents-defendants preferred an appeal before the Appellate Court. The Appellate Court vide its Judgment dated 05.10.2012 remanded the matter back to the trial court for deciding the suit afresh. 4. It was in these circumstances, the suit was pending consideration before the trial court. Learned counsel for the petitioner submits that although, ample opportunities were granted to the petitioner but for bona-fide reasons, the plaintiff- petitioner could not appear before the trial court and produce his evidence. 5. The counsel further submits that on 26.07.2016, the counsel for the petitioner could not appear before the trial court on account of the fact that the counsel for the petitioner's mother was critically ill and therefore, he could not make himself available before the Court. It is also contended that mother of the counsel for the petitioner appearing before the trial court ultimately died. Learned counsel further submits that the counsel appearing before the trial court himself met with an accident and therefore, he was unable to attend the Court proceedings. 6. It was in these circumstances, the petitioner was unaware of the fact that the petitioner's suit was dismissed in default on 26.07.2016 itself. Learned counsel submits that the petitioner is old and infirm person. When the petitioner made contact with his counsel in the month of March, 2017, it came to his knowledge that his suit was dismissed on 26.07.2016 for non prosecution. Immediately, thereafter an application under order 9 rule 4 read with 151 CPC along with an application under Section 5 of the Limitation Act was preferred before the learned trial court but the learned trial court vide its order dated 24.01.2018 also dismissed the same. Immediately, thereafter an application under order 9 rule 4 read with 151 CPC along with an application under Section 5 of the Limitation Act was preferred before the learned trial court but the learned trial court vide its order dated 24.01.2018 also dismissed the same. It is also submitted that for the bona-fide reasons and for the reasons beyond his control, the counsel could not appear before the trial court and since the factum of the dismissal of the suit was not within his knowledge, therefore, he was prevented by the sufficient reasons to file the application under order 9 rule 4 of CPC within the prescribed period of limitation. He, therefore, submits that in the interest of Justice, the application preferred by the petitioner under order 9 rule 4 read with Section 151 of CPC may be allowed and the order dated 24.01.2018 passed by the learned trial court dismissing the application aforesaid may be quashed and set aside and the proceedings in suit pending before the trial court may be restored. 7. Per contra, learned counsel for the respondents submits that the learned trial court was justified in passing the orders dated 26.07.2016 and 24.01.2018. Learned trial court has considered the submissions in detail and no plausible explanation was offered by the petitioner for restoration of the suit proceedings and therefore, he prays that no interference is warranted in the present case. 8. I have considered the submissions made at the Bar and gone through the order passed by the learned trial court on 26.07.2016 and 24.01.2018. It is also noted that the suit preferred by the petitioner was decreed vide judgment dated 20.05.2005 and on being remanded from the appellate court, the suit proceedings were pending consideration before the trial court. It is also a fact that the counsel for the petitioner appearing before trial court had an ailing mother who got critically ill and during the course of treatment, she passed away. Besides this, the counsel for the plaintiff appearing before the trial court also met with an accident and therefore, he was unable to attend the Court proceedings. 9. It is also a fact that the counsel for the petitioner appearing before trial court had an ailing mother who got critically ill and during the course of treatment, she passed away. Besides this, the counsel for the plaintiff appearing before the trial court also met with an accident and therefore, he was unable to attend the Court proceedings. 9. Taking into consideration the submissions made, a lenient approach is adopted in the present case and therefore, in the interest of Justice, one more opportunity is granted to the petitioner to appear before the trial court and complete the suit proceedings as directed by the appellate court vide its judgment dated 05.10.2012. 10. In view of the discussions made above, the writ petition is allowed. The impugned orders dated 24.01.2018 and 26.07.2016 passed by the Senior Civil Judge, Anupgarh, District Sriganganagar are quashed and set aside and the suit is restored at its original number. 11. Learned trial court is directed to undertake the suit proceedings and complete the same at its earliest convenience. The same should be done, if the petitioner deposits a sum of Rs.10,000/- as a cost in the office of Secretary, District Legal Services Authority, Anupgarh, District Sriganganagar. The cost so deposited by the petitioner shall be used for the welfare of the Legal Aid at Anupgarh.