Madan Lal of Amritsar vs Kharaiti Ram and others

D.V. Sehgal, J.—The Petitioner and Respondent Nos. 2 to 7 filed a suit for declaration to the effect that they were the owners in possession of 73 Kanals 8 Marias of land mentioned in the head note of the plant, and that the order dated 11th November, 1985 passed by the Collector, Hoshiarpur, ordering redemption of the land is illegal, null and void without jurisdiction and it does not affect their right. They also sought the consequential relief of permanent injunction restraining Respondent No. 1 from interfering and taking possession of the land in pursuance of the said order For non-appearance of the Plaintiffs and their counsel the suit was dismissed in default by the learned trial Court vide order dated 10th January, 1986. They filed an application for restoration of the suit but the same has also been dismissed in default as their counsel did not put in his appearance.

They filed an application for restoration of the earlier application which had been dismissed in default but the prayer was declined by the learned trial Court vide order dated 31st October, 1986. This is how the Petitioner has approached this Court.

I have heard the learned Counsel for the parties. The evidence brought by them on the record has been discussed in detail by the learned trial Court. Shri Tej Pal Gaur, A.W.1, counsel for the Plaintiffs, appeared before the learned trial Court and stated that because of a wrong date noted in his diary and on the brief he could not appear on the date fixed. His statement was supported by Madan Lal Petitioner and Shri Roshan Lal (A W. 3) Clerk of the aforesaid Advocate. Learned trial Court has pointed out certain discrepancies in the statements of these witnesses. The fact, however, remains that the counsel for the Petitioner has candidly stated that on the previous date of hearing he was out of station and he had entrusted the case to Sh. B. S. Rana, Advocate, who noted the next date as 22nd March, 1986 and told the same to Shri Tej Pal Gaur, Advocate, who in turn noted down the same in his diary and on the brief The case was in fact taken on 21st March, 1986, the next date fixed in the case and in the absence of the counsel for the Plaintiffs, it was dismissed in default.

I am of the considered view that the Plaintiff should not be made to suffer because of the fault of their counsel or the Advocate whom he deputed to appear on his behalf and get the next date of hearing. I find that it is in the interest of justice that the application for restoration of the suit should be restored back on the file and should be decided on merits.

I, therefore, allow, this revision petition, set aside the order dated 31st October, 1986. passed by the trial Court on payment of Rs. 300,/- as costs by the Plaintiffs to Defendant-Respondent No. 1. I, however, leave the parties to bear their own costs in the present revision petition.

Parties through their learned Counsel are directed to appear before the trial Court on 3rd October, 1988 when further proceedings shall be taken in accordance with law.