Sher Singh vs Pritam Singh and Others

G.C. Garg, J.—This revision is directed against the order dated 18.1.1992 of the trial Court whereby it allowed an application for restoration of the suit subject to payment of Rs. 500/- as costs and restored the suit to its original number.

Plaintiff-respondents Pritam Singh and another filed a suit for declaration and permanent injunction somewhat in the year 1989. The suit was dismissed in default on 31.7.1990. Application for restoration of the suit was moved on 6.10.1990 on the allegations that the suit was listed for hearing on 31.7.1990 but the applicant and his counsel understood that the date fixed in the suit was 31.8.1990 and not 31.7.1990. The applicant came to know on 31.8.1990 that the suit had been dismissed in default on 31.7.1990. This application was opposed by the defendant-petitioner only. Stand taken was that the application had been filed beyond the period of limitation and, therefore, it was clearly barred by time.

Trial Court after framing issues and affording the parties an opportunity to lead evidence in support of their contentions in the application for restoration of the suit, granted the application by its order dated 18.11.1992. It is this order of the trial Court, which is under challenge in this revision petition.

Learned counsel for the petitioner submitted that in view of the provisions of section 3 of the Limitation Act, delay in filing the application for restoration of the suit could not be condoned. Learned counsel further submitted that in fact no application was moved by the plaintiff-respondents seeking condonation of delay in moving the application for restoration of the suit. Learned counsel further contended that in the absence of an application for condonation of delay, the trial Court was not legally justified in granting the application for restoration of the suit. Learned counsel in support of his submission placed reliance on a Supreme Court judgment in Rajender Singh and Others Vs. Santa Singh and Others, .

Learned counsel for the plaintiff-respondents on the other hand submitted that the parties were afforded opportunity to lead evidence on the application for restoration of the suit and the court has inherent power even to condone the delay on the oral request of the counsel. Trial court has in the present case on a consideration of the matter ordered restoration of the suit obviously after condoning the delay as the court was very much alive to the question of limitation.

After hearing learned counsel for the parties and having regard to the facts and circumstances of this case, I find that the trial Court considered both the issues together, namely, whether there are sufficient grounds to restore the case and also whether the application is not within limitation. Trial Court on a consideration of the evidence led before it and having regard to the facts and circumstances of the case allowed the application and restored the suit at its original number. Rights of the parties have not been settled by the disposal of this application as the suit a lone has been restored at its original number. The petitioner has thus not suffered any prejudice by the impugned order. In that view of the matter, I see no ground to interfere with the order of the trial court whereby it restored the suit. It is by now the endeavor of the courts that lis between the parties is decided on its merits and not on technilities especially that of limitation. It is true that the applicant came to know of the dismissal of the suit on 31.8.1990 as per his own assertion and he ought to have moved the application within a period of 30 days thereof but the application moved by him cannot be thrown out only on the short ground that it was filed beyond the period of limitation, that too when the delay was of seven days only. Even otherwise the provisions of clause (b) of sub-section (1) of Section 115 of the CPC provide that the High Court shall under this section, not vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. The impugned order in my opinion, if allowed to stand is not likely to occasion failure of justice to the petitioner. In that view of the matter, the revision petition is dismissed. The parties through their counsel are directed to appear in the trial Court on 17.9.1998 for further proceedings. The trial Court shall now dispose of the suit in accordance with law at a very early date. No costs.