Lajja Ram Garg & sons vs Maya Ram Hem Dass

J.V. Gupta, J.

Plaintifffirm (petitioner) filed the suit for the recovery of Rs. 28000/ on 12.4.1973. Issues in the case were framed on 23.3.1975. The delay was on account of the service on the defendantfirm. 5.6.1975 was the first date fixed for the plaintiff''s evidence. The case was adjourned from time to time for plaintiff''s evidence. On 1.6.1977 plaintiff was not present as he was stated to be ill. However, the case was fixed for pejtitioner''s evidence for 3.8.1977 and at the same time for defendant''s evidence on 30.8.1977. The date was given on payment of costs of Rs. 40/ by way of last opportunity to the plaintiff. On 3.8.1977, counsel for the plaintiff appeared and pleaded no instructions. Consequently, the trial Court dismissed the suit in default under Order 9 Rule 8, Code of Civil Procedure on 3.8.1977. Application for its restoration was filed on 11.8.1977 i.e. within eight days. Surprisingly enough, reply to the said application was filed on 18.4.1979. According to the plaintiff, he could not be present on 3.8.1977 because he was ill on that day at Lucknow; and therefore, he was unable to come from Lucknow to Jagadhari to attend the Court. It was also pleaded that since on 1.6.1977, two dates were fixed, one for the plaintiff''s evidence i.e. 3.8.1977 and the other for defendant''s evidence i.e. 30.8.1977, thus Suresh Chand (Munim) of the plaintiff was under the impression that 3.8.1977 was not date for plaintiff''s evidence as such and the case was really fixed for 30.8.1977. However, both the Courts below have negatived the pleas taken by the plaintiff in his application and have dismissed the same. This is most unfortunate that this application for restoration was decided by the trial Court on 28.4.1983 i.e. it remained pending for about 6 years in that Court. Appeal against the said order was dismissed by the learned Additional Sessions Judge on 26.8.1985, which means, it took two years for the appellate Court to decide the matter. Dissatisfied with the same, the plaintiff has filed this petition in this Court.

The learned counsel for the plaintiff contended that there could not be any question of any mala fide on the part of the plaintiff in not appearing on 3.8.1977. As a matter of fact it was plaintiff''s suit which was being delayed and in any case the said application was filed within one week of the dismissal, the same should have been restored on payment of costs if any. It was also contended that even if the plaintiff fails to prove sufficient cause for his nonappearance the suit should have been restored and the other party could be compensated with costs, when the application for its restoration was filed immediately. In support of this contention he referred to Buta Singh v. Puro, 1979 PLJ 259. On the other hand, learned counsel for the defendantrespondent submitted that the whole conduct of the plaintiff Lajja Ram Garg speaks for itself. The suit itself has not been filed bona fide as it was in the nature of counterblast in the suit already filed by the defendant against the plaintiff at Mandi in Himachal Pradesh. According to the learned counsel both the pleas i.e. of illness and of wrong impression are selfcontradictory and therefore, the Courts below have rightly found that there was no sufficient ground for restoration of the suit. Medical certificate, according to the findings of the Courts below, was fabricated and was not produced along with the application. Rather it was produced after about 3 years of the application. Thus argued the learned counsel, both the Courts below on appreciation of the entire evidence, have rightly come to the conclusion that there was no sufficient grounds for restoration and that being a finding of fact could not be interfered with in revisional jurisdiction. Reference was made to AIR 1973 S.C. 76 The Managing Director (MIG) v. Ajit Parshad etc.

After hearing the learned counsel for the parties, I am of the considered view that all the exercise by the Courts below in disposing of this application in consuming about eight years, could be saved by ordering its restoration on payment of costs to compensate the defendant. Admittedly, the application for restoration was filed with promptitude i.e. within one week from its dismissal. That being so, this itself was sufficient to restore the suit on payment of costs. The Courts below have acted illegally and with material irregularity in the exercise of its jurisdiction causing failure of justice. It was observed by this Court in Buta Singh''s case (supra), that the restoration of a suit dismissed in default should not be denied simply because the plaintiff fails to prove strictly sufficient cause for his nonappearance. Ordinarily, if the application is made within limitation, the suit ought to be restored and for the negligence on the part of the party, the other party can be compensated with costs.

In this view of the matter, the petition succeeds, the impugned orders are set aside and the application for restoration is allowed on payment of Rs. 500/ as costs. The parties have been directed to appear in the trial Court on 2.4.1986. On that date, the plaintiff will appear in the Court for his own statement because it has already come in the orders of the trial Court that the plaintiff is only to examine himself for his evidence. On that date, if the costs are not paid, and the plaintiff is not present in court in that situation this petition shall stand dismissed with costs.