Hira Lal vs Madan Lal

L.N. Mittal, J.—Defendant Hira Lal has filed this revision petition under Article 227 of the Constitution of India assailing order dated 04.10.2012 (Annexure P-5) passed by the trial court. Suit filed by respondent-plaintiff Madan Lal against petitioner-defendant Hira Lal was decreed by the trial court vide ex-parte judgment and decree dated 11.10.2003 (Annexure P-1). Defendant filed application dated 25.04.2005 (Annexure P-2) under Order 9 Rule 13 of the CPC (in short ''CPC'') for setting-aside the ex-parte judgment and decree dated 11.10.2003 (Annexure P-1). Application dated 25.04.2005 (Annexure P-2) was dismissed in default vide order dated 01.12.2006. Defendant filed application (Annexure P-3) dated 20.03.2007 for restoration of application dated 25.04.2005 (Annexure P-2) alleging that since no effective proceedings were to take place in application dated 25.04.2005 (Annexure P-2), which was fixed for summoning of original suit file, counsel for the defendant-petitioner in the lower court had informed the petitioner that he was not required to appear in the court. However, the counsel did not intimate the petitioner about the fate of application (Annexure P-2). The petitioner on 12.03.2007 contacted his said counsel who then informed the petitioner about the dismissal of application dated 25.04.2005 (Annexure P-2) in default on 01.12.2006.

The plaintiff by filing reply Annexure P-4 opposed the application dated 20.03.2007 (Annexure P-3) and controverted the averments made therein.

Learned trial court after framing issues and recording evidence, dismissed the application dated 20.03.2007 (Annexure P-3) filed by the defendant vide order dated 04.10.2012 (Annexure P-5) which is under challenge in this revision petition.

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

Counsel for the petitioner reiterated the petitioner''s version pleaded in application Annexure P-3 as noticed here-in-above. On the other hand, counsel for the respondent-plaintiff contended that restoration application (Annexure P-3) was filed belatedly and even application for condonation of delay in filing the restoration application (Annexure P-3) was not moved.

I have carefully considered the rival contentions.

There is grave lapse on the part of the defendant-petitioner. In the suit, he was proceeded against ex-parte and the suit was decreed vide judgment and decree dated 11.10.2003. The defendant moved application (Annexure P-2) after one and half years for setting-aside the ex-parte judgment and decree. However, even then, the defendant was not vigilant in prosecuting his application (Annexure P-2) which was dismissed in default vide order dated 01.12.2006. Even restoration application (Annexure P-3) was not filed promptly but was filed on 20.03.2007 i.e. 3 months 20 days after the application (Annexure P-2) had been dismissed in default.

Having said as aforesaid, I am of the considered opinion that ends of justice would be met if restoration application (Annexure P-3) filed by the petitioner is allowed on payment of heavy cost. The petitioner has to be burdened with heavy cost in view of his aforesaid conduct. The plaintiff can be duly compensated by way of cost. By allowing this revision petition, application (Annexure P-2) filed by the petitioner is only being restored and the same would be decided by the trial court. Consequently plaintiff shall not suffer any loss or injury by restoration of application (Annexure P-2).

As a necessary consequence of the discussion aforesaid, the instant revision petition is allowed. Impugned order (Annexure P-5) passed by the trial court is set-aside. Restoration application (Annexure P-3) filed by the petitioner is allowed and application (Annexure P-2) filed by the petitioner is restored to the files of the trial court for decision in accordance with law subject to payment of Rs. 10,000/- as cost precedent by the petitioner to the respondent. The parties are directed to appear before the trial court on 28.10.2013.