Naginder Singh vs State of Punjab

Amar Dutt, J.—This revision petition seeks to challenge the order dated 15th September, 1981 passed by the Additional District Judge, Sangrur by which the appeal filed by the petitioner for restoration of the application filed u/s 8 and 20 of the Indian Arbitration Act which was dismissed in default by the Senior Subordinate Judge, Sangrur on 8th March, 1980.

It is not disputed that after the dismissal of the application on 8th March, 1980, Naginder Singh moved an application for restoration. According to the applicant, the case had been dismissed because on the date of hearing Naginder Singh had gone out of station for domestic work and when the case was taken up, his counsel was busy in another Court. It is submitted that the absence of the petitioner and his counsel was not intentional and, therefore, the case should have been restored and disposed of on merits. The application was resisted by the respondent and from the pleading two issues were framed. The Senior Subordinate Judge while disposing of the application rejected the prayer and the appeal filed by the petitioner too met the same fate. Hence, this revision.

I have heard Shri Jaswant Jain, Advocate for the petitioner and Shri H.S. Gill, Deputy Advocate General, Punjab for the State of Punjab and have carefully considered the respective submissions made by them.

The learned counsel for the petitioner has relied upon Smt. Chancier Kanta v. Sulekh Chand Sumer Chand (1978)80 P.L.R. 423 to submit that the party should not be made to suffer for the negligence of his counsel and in such a case, the other party can always be compensated with costs. He also relied upon Buta Singh v. Puro and Anr.1979 P.L.J. 259 the proposition that restoration should not be denied merely because the applicant fails to prove strictly sufficient cause for his non appearance especially in a case where the application for restoration has been made within the period of limitation.

On behalf of the respondents, it is submitted that 18 years have passed after the rejection of the petitioner''s application under Order 9 Rule 9 CPC and, therefore, this Court should not interfere with the concurrent view expressed by the Courts below regarding the merits of the case and the acceptability of the explanation given by the petitioner for his own fault and the fault of his counsel to appear in Court when the case was called on 8th March, 1980. While there is no doubt that the present petition has been pending disposal for a large number of years but this fact by itself would not disentitled the petitioner to the grant of relief. The petitioner in the present case has moved an application for restoration within two days of the dismissal of the application which fact to my mind cannot be lost sight of by the Court while trying to assess the seriousness with which he has been pursuing his case as also whether his absence on the date fixed was motivated by reasons other than what have been indicated in the application for restoration.

In Buta Singh''s case (supra) it has been held that ordinarily if the application is made within limitation, the suit should be restored and for the negligence on the part of the counsel the other party can be compensated with costs. In Chander Kanta''s case (supra), it has been held that a party should not be made to suffer for the negligence of his counsel and in such a case the other party can be compensated with costs.

In view of this settled position of law, I am of the view that in facts and circumstances of the case, the Courts below should have exercised their discretion in favour of the petitioner and should not have prevented the parties from getting a decision on the merits of the case and for the hardship suffered by the respondent, the State should have been compensated with costs.

For the reasons recorded above, the revision petition succeeds and is allowed. The order dated 15th September, 1981 and 8th March, 1980 passed by the appellate Court and the trial Court are set aside. The application filed by the petitioner for restoration of the case is allowed and the case is restored to its original number subject to payment of Rs. 2,000/- as costs to the respondents.

Copy of the order be conveyed to the trial Court.