Mamta vs Jagdish Rai

Paramjeet Singh, J.—The instant revision petition under Article 227 of the Constitution of India has been filed against the order dated 17.5.2013 (Annexure P-4) passed by learned Additional District Judge, Barnala whereby the application for restoration of the appeal-dismissed in default, has been dismissed. Learned counsel for the petitioners vehemently contends that the appeal was dismissed in default on 11.8.2009. The application for restoration of appeal was filed on the very next day i.e. on 12.8.2009 and the same was also dismissed on 18.5.2010. Against the said order the petitioners filed Civil Revision No. 4386 of 2010 in this Court and the same was dismissed on 20.8.2010 by passing the following order:

However, in the eventuality of the petitioners filing an appropriate application duly supported by an affidavit, the Court shall consider the same fresh which shall also take into consideration whether the application is justifiably within limitation or not. Dismissed.

Learned counsel for the petitioners further contends that initially there was no delay in filing application for restoration of the appeal but due to some technical error, the application was dismissed.

None has put in appearance on behalf of respondents despite service.

I have considered the contentions of learned counsel for the petitioners and perused the case file.

This Court vide order dated 20.8.2010 had given an opportunity to the petitioners to file an appropriate application duly supported by an affidavit for restoration of appeal and it was specifically mentioned in the order dated 20.8.2010 that in case fresh application for restoration was filed, the lower Court shall consider the same afresh and would also take into consideration whether the application was justifiably within limitation or not. The contention of the learned counsel for the petitioners is that initially application for restoration of appeal was filed on 20.8.2009 i.e. on the very next date when the appeal was dismissed in default on 19.8.2009 but the same was dismissed on technical grounds. It appears that the lower Court when dealing with second application for restoration was swayed'' by the fact that this Court upheld the earlier order of the trial Court vide which the application for restoration was dismissed on technical fault in the application with regard to verification part of the pleadings. The lower Court overlooked the observation of this Court requiring that Court to look into limitation point while dealing with second application. When this Court allowed filing of second application, the lower Court fell into error in observing that earlier order dismissing the application for restoration had attained finality with the dismissal of revision by the Court. This Court is of considered opinion that as the petitioners moved application for restoration on the very next day of dismissal of appeal in default, the lower Court should not have dismissed the second application being barred by time. This Court is of the considered opinion that the lower Court should have restored and decided the appeal on merits instead of going into the technicalities. On merit also, merely for one default, the rights of the petitioners could not be scuttled and there was no reason to disbelieve the bona fide of the petitioners. Keeping in view the above situation and also in the interest of justice, this revision petition is allowed, order dated 17.5.2013 (Annexure P-4) is, hereby, set aside and the appeal before the lower Court is restored to its original number, subject to payment of cost of Rs. 10,000/- which shall be deposited with the Punjab State Legal Services,'' Authority. The Appellate Court is directed to proceed in accordance with law.

Disposed of accordingly.