Gurcharan Singh vs Smt. Leela Rani and Others

V.K. Jhanji, J.—Counsel for the parties have stated that instead of passing order in the miscellaneous application, revision petition itself be disposed of on merits. In view of this statement of counsel for the parties, revision petition has been taken on beard and is being disposed of on merits.

The revision petition is directed against the order of the trial Court whereby it has dismissed the application of the petitioner to restore the application which had earlier been dismissed in default.

In brief, the facts are that petitioner filed suit for specific performance in respect of the property situated at Gokul Road, Ludhiana on the basis of agreement to sell dated 10.9.1980 and also for grant of permanent injunction restraining the defendants therein (respondents 1 to 10 herein) from alienating in any manner the property or a part thereof and also from interfering in any manner whatsoever, in his peaceful possession of the premises in dispute. On notice of the suit, the defendants contested the suit by denying the averments made therein. On 28.7.1984, when the case was fixed for evidence of petitioner, the same was dismissed in default. Petitioner filed an application under Order 9 Rule 9, Code of Civil Procedure, for restoration of the suit on the plea that the counsel had wrongly noted the date as 28.8.1984 and therefore, non-appearance of the counsel or the petitioner on 28.8.1984 was unintentional and not deliberate. Trial Court on the basis of the pleadings framed issues and adjourned the application for evidence of the plaintiff. This application too was dismissed in default on 10.2.1988. An application to restore this application was filed on 10.3.1988 by saying that the counsel had wrongly noted the date as 10.3.1988 and therefore, non-appearance on 10.2.1988 was bona-fide and was in the circumstances that the counsel had wrongly noted the date. On notice of this application, respondents filed their reply and on the basis of pleadings of the parties on this application the following issued were struck by the trial Court:

"i) Whether there are the sufficient ground for the restoration of the application under Order 9 Rule 9 C.P.C. dismissed on 10.2.1988? OPA.

ii) Whether the application is within time? OPA.

iii) Relief.

The parties were given opportunity to lead evidence. On the basis of evidence led by the parties on the issues, the trial Court dismissed the application. Petitioner having felt aggrieved of the said order has come to this Court by way of present revision petition.

Learned counsel for the petitioner has contended that the suit as well as the application were dismissed in default as the counsel had wrongly noted the dates in his diary and on the brief and, therefore, petitioner should not be made to suffer because of the lapse on the part of his counsel. Against this, counsel for the respondents has contended that the petitioner and his counsel had not appeared intentionally before the Court as the petitioner failed to produce any evidence in spite of large number of opportunities granted for recording of the evidence. He contended that though the plea taken in both the applications is that the counsel had wrongly noted the dates, but neither the diary nor the brief on which he noted the dates, have been produced. According to the counsel on account of non-production of best evidence available with the petitioner, the trial Court has rightly dismissed the application.

After hearing the counsel for the parties, I am of the view that there is no merit in the revision petition. For restoration of the suit anil the application dismissed in default, the plea taken is that the counsel had wrongly noted the date. On perusal of the record, I am of the view that the plea taken is an after-thought and the petitioner is in the habit of taking such a plea. Respondents have brought on record a copy of the application filed by the petitioner in some other proceedings pending before the Rent Controller where a similar application has been filed by the petitioner under Order 9 Rule 9, Code of Civil Procedure, for setting aside ex-parte order dated 18.9.1984. In that application too, petitioner has taken similar plea by saying that the counsel had noted the date as 18.10.1984 when in fact he was ordered to be proceeded against ex-parte on 18.9.1984. Not only this no explanation has been given by the petitioner or his counsel for not producing the diary or brief on which he noted the dates for appearance. In absence of material on record, trial Court had no alternative but to disbelieve the plea of the petitioner that his counsel had wrongly noted the dates and his non-appearance on the dates fixed was bona-fide. The finding having been arrived at on the basis of material on record is not to be interfered with in revisional jurisdiction.

Consequently, this revision petition being without any merit shall stand dismissed.