Paramjit Singh vs Lakhvinder Kaur and Others

Rajiv Narain Raina, J.—The plaintiff is the petitioner in a title suit. On 16.12.2011, no one appeared in the Court either on behalf of the plaintiff or the defendants and the case was ordered to be dismissed in default of appearance of parties and the file was ordered to be consigned to the record room.

Aggrieved by the order, the petitioner moved an application within the period of 30 days prescribed for preferring an application for restoration of the suit. That application remained pending and was decided on 23.4.2014 by the learned Civil Judge (Junior Division), Rajpura declining the prayer for restoration of the suit. In the application, cause has been shown for non-appearance for the reason that the plaintiff was hard of hearing and noted down a wrong date. This has been disbelieved by the learned trial Court. The application was supported by an affidavit which was not rebutted by the defendants. Failure to produce any medical record of being hard of hearing is made reason to dismiss the application.

Aggrieved by the adverse orders, the petitioner has approached this Court in the present petition filed under Article 227 of the Constitution of India.

Mr. Chopra submits that where the dismissal of the suit is for non-appearance and the case falls under Order 9 Rule 4 CPC, then the view of this Court is that where both parties failed to appear, that alone constitute sufficient cause for restoration of the petition to its original number. Restoration of the suit dismissed in default should be decided on affidavits, within shortest time possible and not as if the Court were deciding any rights of the parties in the main suit. Parties should be allowed to contest their claim on merits instead of dismissing a suit by refusing to restore it. The Court even can restore such suit dismissed for non-appearance of the parties without issuing notice to the opposite side if sufficient cause is shown and it is not necessary for the Court even if notice is issued to the opposite side to frame issue and then try matters of restoration for couple of years and then find out whether the suit is to be restored or not. If the wrong date was noted, there was no reason to disbelieve the plaintiff and it may not have been necessary for him to furnish medical record to show sufficient cause for non-appearance.

For this proposition, Mr. Chopra relies on the decision of U.P. Roadways Gwalior Road, Agra Vs. Mst. Sushila Devi and others , Radha Jute Industry Vs. Sukhna Papers Mills Ltd., ; Pritam Chand Vs. Shamsher Singh and Others, ; Sewa Singh Vs. Harbans Singh and Others, and of the Karnataka High Court in Syed Mustapha Kamal Pasha and another Vs. Dr. H.A. Ramachandra Gowda and others, and of the Uttarakhand High Court in Narendra Singh Vs. Ghanshyam Singh and Others, .

In view of this legal position, there is no need to issue notice to the opposite side to hear them out on settled proposition of law.

Consequently, this petition is allowed and the impugned order is set aside and the suit is restored to its original number. Accordingly, trial to proceed. Let the parties appear before the learned trial Court on 16.7.2014.