R.P. Jagga vs Sadhu Ram and Co.

R.N. Mittal, J.—This revision has been filed against the order of the Subordinate Judge dated 12.8.1986, framing issues in an application for restoration and fixing the date for evidence of the Petitioners.

Briefly the facts are that the Plaintiffs instituted a suit for injunction against the Defendants in the Court of the Subordinate Judge I Class, Chandigarh in October, 1985. They also filed an application for ad interim injunction. On 22.2.1986, the service of Respondents 1, 3 and 4 had been effected and Shri R.K. Mittal, Advocate appeared on their behalf. However, the service of Defendants 2 and 5 had not been effected. Consequently, the Court adjourned the case to 31.3.1986 for their service. On 25.3.1986 the case was taken up by the Court. None of the parties was present had the same was dismissed. It is alleged that 25.3.1986 was not fixed in the main case, but was fixed in the application for ad interim injunction.

The Plaintiff-Petitioners filed an application on 7.4.1986 for restoration of the suit. A notice of the application was given to Respondents 1, 3 and 4 for 28.4.1986. After their service, the said Respondents contested the application for restoration. ON 12.8.1986 the Court framed the following issues:

(1) Whether there are sufficient ground for restoration of the suit.

(2) Whether the application is not maintainable?

(3) Relief.

and adjourned the case to 23.9.1986 for evidence. The Plaintiffs have come up in revision against the said order

(4) The matter is covered by a decision of this Court in Pritam Chand v. Shamsher Singh (1986) 89 P.L.R 315, wherein it was observed:

...If a suit is dismissed under Order 9 Rule 3 of the CPC in the absence of both the parties, the Court had jurisdiction of power to restore the suit of 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.

Adverting to the facts of the present case, it is clear that 25.3.1986 was not fixed in the suit and even the Respondents were not present in Court on that date. The Court, in these circumstances could not dismiss the suit under Order 9 Rule 3 of the CPC (briefly the Code). It may be noted further that the application for restoration was filed on 7.4.1986 within the period of limitation and in order to restore the suit, it was not necessary for the Court to issue notice to the other side, as the suit had been dismissed under Order 9 Rule 3 of the Code. After taking into consideration all the aforesaid circumstances, I am of the view that it was not necessary to frame the issues and the suit should have been restored by the trial Court on the application for restoration filed by the Petitioners. In the result, I accept the revision and restore the suit. No costs.

The Petitioner are directed to appear in the trial Court on the 16th day of September, 1987. The Court shall proceed in the main it in accordance with law.