Raghbir Singh and Others vs Pritam Singh and Others

H.S. Brar, J.—In this civil revision a prayer has been made to set-aside the judgment of the lower appellate Court dated 9.6.1988 and to restore the order of the trial Court.

Briefly, stated that facts are that Pritam Singh and others instituted a Civil Suit No. 386 of 18.7.1981 for declaration against Raghbir Singh and others which was dismissed in default by the Additional Senior Sub-Judge, Patiala vide his order dated 12.12.1983 under Order 9, Rule 3, Civil Procedure Code.

Against that order of the Additional Senior Sub-Judge, an appeal was preferred by Pritam Singh etc. before the District Judge, Patiala. The learned Additional District Judge, Patiala vide his Judgment dated 9.6.1988 accepted the appeal, set aside the order of the Additional Senior Sub-Judge, dated 24.2.1987 and restored the suit against its original number on payment of Rs. 200/- as costs. Thus, this revision - petition.

Heard. The learned counsel for the petitioners is unable to find fault with the judgment of the first appellate Court, though he urges that the suit filed by the plaintiffs before the trial Court was frivolous and without any basis. I do not want to go into the merits of the suit at this stage. Suffice to say that the judgment of the Additional District Judge, Patiala dated 9.6.1988 is well reasoned and does not need any interference particularly when the suit was dismissed in default of appearance of both the parties on 12.12.1983 and the application for restoration was filed before the Court that very day.

The evidence produced by the plaintiffs before the trial Court for restoration of the suit dismissed in default is quite weighty. Pritam Singh plaintiff had stated that on 12.12.1983 he was busy in attending other affairs and as such he had informed his counsel Shri S.N. Khosla, Advocate that he should appear in the Court and seek adjournment and he had been attending the Court earlier. Shri S.N. Khosla, Advocate appearing as A.W-1 stated that on 12.12.1983 he appeared before the Court before lunch-break and had urged before the trial Court that the case be adjourned as Shri Puran Chand Advocate was unable to appear in the Court that day. The Advocate was told that the case would be taken up after lunch-break. When he appeared at about 3. 00 P.M. he was told that the suit had been dismissed in default of appearance of both the parties.

The evidence adduced by the parties before the trial Court does not, in anyway, indicate that the absence of the plaintiffs was intentional or they were otherwise negligent to pursue their suit.

In these circumstances, I affirm that judgment of the first appellate Court and dismiss this revision petition with costs which are qualified at Rs. 500/-.