Balbir Singh vs Sarwan Kumar

L.N. Mittal, J.—In this revision petition filed under Article 227 of the Constitution of India by plaintiff Balbir Singh, challenge is to order dated 24.7.2010 Annexure P/1 passed by the trial court thereby dismissing application Annexure P/4 filed by the plaintiff for restoration of the suit which stood dismissed for non-prosecution under Order 9 Rule 2 of the CPC (in short, CPC) vide order dated 23.1.2008 Annexure P/3 due to non-furnishing of correct address of defendant-respondent for service of summons in the suit inspite of many opportunities. The plaintiff alleged in the restoration application that he had furnished correct address of the defendant who, however, avoided service being clever person. It was also pleaded that defendant was appearing in other cases pending between the parties.

The defendant by filing reply Annexure P/5 opposed the restoration application pleading that the plaintiff failed to furnish correct address of the defendant intentionally and the suit was rightly dismissed for non-prosecution.

The trial court vide order Annexure P/1 has dismissed the restoration application filed by the plaintiff who has, therefore, filed this revision petition to assail the said order.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that the respondent was served in the restoration application on the same address as given in the plaint and therefore, it cannot be said that address given in the plaint was not correct.

Counsel for the respondent, on the other hand, contended that the respondent-defendant was never served in the restoration application and he appeared in the court in the restoration application because he was present in the court in some other case when he was informed about the restoration application.

I have carefully considered the rival contentions. When notice of the instant revision petition was issued to the respondent, it was received back unserved with the report that he was not residing at the given address. Consequently, it is apparent that address given in the plaint, as also given in the instant revision petition, is not correct address of the respondent. Similar report had been received on the summons in the trial court whereupon plaintiff was directed to furnish correct address of the defendant, but the plaintiff failed to do so inspite of many opportunities.

In the aforesaid circumstances, I am of the considered opinion that ends of justice would be met if suit of the plaintiff is restored on payment of heavy costs.

Resultantly, the instant revision petition is allowed. Impugned order Annexure P/1 passed by the trial court is set aside. Restoration application Annexure P/4 filed by the plaintiff is allowed and the suit instituted by plaintiff-petitioner against defendant-respondent vide plaint Annexure P/2 is restored to the files of the trial court subject to payment of Rs. 5000/- as costs precedent by the petitioner to the respondent. Parties are directed to appear in the trial court on 11.9.2013.