Pritam Chand vs Shamsher Singh and Others

After hearing the learned counsel for the parties, I am of the view that this revision deserves to succeed. In the suit some of the defendants were served who in spite of service did not appear and were proceeded ex parte. It was ordered that the remaining defendants should be served. The case was taken up on 25-5-1982 when none was present and the suit was dismissed in default under O. 9, R. 3 of the Code of Civil Procedure. On 8-6-1982, the plaintiff moved an application for restoration of the suit and the justification given was that the counsel by mistake noted 29-5-1982 as the date of hearing. The trial Court disallowed the application for two primary reasons: (1) that neither the counsel nor his clerk were produced to prove that they had noted 29-5-1982 as the date of hearing instead of 25-5-1982 and (2) that in case they had noted wrong date, they would have come to know on 29-5-1982 that the case had already been dismissed in default and would have filed an application for restoration of the suit immediately and would not have waited till 8-6-1982.

Dealing with the second point first, the limitation provided for seeking restoration of the suit is thirty days and, therefore, the application could be filed within thirty days and that is what has been done in this case. It is true that the application could be filed soon thereafter also but that would not justify the inference that the lawyer or his clerk had not noted down a wrong date.

Adverting to the first point, there was unrebutted statement of the plaintiff that his counsel had noted 29-5-1982 as the date of hearing instead of 25-5-1982 and in support of this produced the envelope of his counsel which contained the proof as on it the dates are noted wherein 29-5-1982 is noted and 25-5-1982 is not noted. This envelope is Exhibit P. 1 on the record.

If a suit is dismissed under O. 9, R. 3. of the CPC in the absence of both the parties, the Court had jurisdiction or power to restore the suit if sufficient cause is shown, without issuing notice to the opposite side. Even if notice was issued to the opposite side, I am of the considered view that it was not necessary to frame an issue and then to try this matter for couple of years and then to find out whether the suit is to be restored or not. This matter should have been decided merely on affidavits in the shortest possible time. I am sure, this observation would be kept in view by the trial Courts in considering such matters.

Direction is also issued to the trial Courts to keep in view that such matters are not to be strictly decided like the rights of the parties in the main suit because as far as possible, the parties should be allowed to contest their claims on merits instead of dismissing the suit by refusing to restore it.

For the reasons recorded above, this revision is allowed, the order of the trial Court dated 13-1-1984 is hereby set aside and the application filed by the plaintiff under O. 9, R. 4. of the CPC is allowed and the order of the trial Court dated 25-5-1982 dismissing the suit in default is hereby set aside with the result that the suit becomes pending in the trial Court. The parties, through their counsel, are directed to appear before the trial Court on 3-2-1986 with a direction to proceed with the suit with expedition as it would be an old suit of the year 1982.

Revision allowed.