Avtar Singh and Others vs Bhajan Singh and Others

S.P. Goyal, J.—This first appeal by the plaintiffs has been filed against the order of the learned Sub-Judge 1st Class, Amloh, dated April 24, 1974, declining to restore the application dismissed for default.

The plaintiffs filed an application under Order 33, Rule 1, of the Civil Procedure Code, for permission to sue in forma pauperis for the recovery of Rs. 60,000/-. The respondents were yet being summoned when the same was dismissed for default on June 8, 1972. An application was moved on June 20, 1972 for restoration of the said application on the ground that the guardian of the minor plaintiffs could not appear on the date fixed as he had been taken suddenly ill. The application was opposed by the respondents and was dismissed far default.

To prove sufficient cause for non-appearance, the appellants examined A.W. 1, Madan Gopal, Clerk of Mr. Ram Joginder Rai, Advocate their counsel, A.W. 2 Ram Karan A. W. 3 Ram Singh Sarpanch and A.W. 4 Mohinder Singh, guardian of minor. A.W. 1 Madan Gopal stated that Mr. Ram Joginder Rai, Advocate, was to appear on June 20, 1972 in the Court of Sub Judge, Nabha, and therefore, a message was sent through A.W. 2 Ram Karan to Mohinder Singh, guardian of the minor, to attend the Court on that date A.W. 2 Ram Karan corroborated the statement and further stated that he conveyed the message to Mohinder Singh, who was lying ill. Mohinder Singh, guardian, whose statement was corroborated by A.W. 3 Karam Singh Sarpanch, stated that he could not attend the Court as he had been suddenly taken ill. The respondents did not lead any evidence in rebuttal. The trial Court however, rejected the plea on the ground that guardian Mohinder Singh had been informed well before time and he should have made some alternative arrangement. This is wholly unwarranted approach. All that the party is required to show is that there was sufficient cause for his non-appearance. The trial Court did not disbelieve the statement of the guardian that he could not appear because of his sudden illness which certainly constitute sufficient cause for nonappearance.

That apart, the rules and procedure are the handmaids of justice meant to advance its cause and not to deny the parties decision on merits. Restoration of a case dismissed for default should not ordinarily he denied unless the party is found guilty of contumacious negligence of wilful default.

In view of the above discussion, this appeal is allowed. The order of the trial Court is set aside and the suit is ordered to be restored. The plaintiffs are directed through their counsel to appear in the trial Court on November 21, 1977. There will, however, be no order as to costs.