Mohinder Kaur vs Sukhcharan Singh and Another

L.N. Mittal, J.—Mohinder Kaur has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 28.05.2010 (Annexure P-2) passed by learned Additional District Judge (Fast Track Court), Ambala, thereby restoring the first appeal preferred by respondents herein, which had earlier been dismissed in default.

This Court, vide order dated 07.10.2002 (Annexure P-1), decided R. S. A. No. 2649 of 1995 and set aside judgment and decree of the first appellate court and remanded the first appeal to first appellate court for fresh decision on merits. This Court directed the counsel for the parties to appear before the first appellate court on 29.10.2002. However, none appeared for the appellants (respondents herein) in the first appellate court on 29.10.2002 and the first appeal was accordingly dismissed in default. Respondents herein moved application for restoration of the appeal alleging that they were abroad and they could not contact their counsel and therefore, they were not aware that they had to appear before the first appellate court on 29.10.2002. The said application has been allowed by first appellate court vide impugned order Annexure P-2.

I have heard learned Counsel for the petitioner and perused the case file.

Learned Counsel for the petitioner vehemently contended that it was the duty of respondents herein to have remained in touch with their counsel in R. S. A. No. 2649 of 1995 and it was not the duty of the said counsel to contact the respondents herein to intimate the fate of the said RSA. It is correct that it was the duty of the respondents herein to have remained in touch with their counsel in the aforesaid RSA. However, it has come on record that respondents herein were abroad at the relevant time. Affidavit of the counsel, who represented the respondents herein in the aforesaid RSA, was also produced in the lower appellate court affirming that the said counsel could not contact the respondents herein as he did not have their correspondence address and telephone number because they were abroad.

Courts are normally liberal in restoring cases, which have been dismissed in default because cases should normally be decided on merits. In the instant case, the respondents herein did commit the lapse of not contacting their counsel in the aforesaid RSA, but the lower appellate court has found that there is sufficient ground for restoration of the first appeal. The said finding cannot be said to be illegal or perverse so as to warrant interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. It cannot be said that the lower appellate court has exercised jurisdiction, which did not vest in it or has refused to exercise jurisdiction, which vested in it or has committed illegality in exercise of its jurisdiction. However, some cost should have been imposed on the respondents herein for restoring the appeal.

In view of the aforesaid, finding no merit in the instant revision petition, the same is dismissed in limine with the observation that the respondents herein shall pay Rs. 5,000/- as cost precedent to the petitioner herein for restoration of first appeal. If the respondents herein object to the imposition of this condition of cost, they shall be at liberty to approach this Court.