Shmt. Maan Kaur and others vs Santa Singh and another

J.V. Gupta, J.—This revision petition is directed against the order of the Additional District Judge, Ludhiana dated 4th June, 1981 passed in appeal whereby he confirmed the order of the trial Court, dismissing the application filed on behalf of plaintiff/petitioner for restoring his suit which was dismissed in default on 14th of September, 1978.

One Sham Singh was original owner of the suit property. He is alleged to have died in the year 1968. His sons and daughters filed the suit for possession of the said land left behind by Sham Singh deceased. The defendant/respondents set up a will in their favour executed by Sham Singh some where in the year 1955. However, during the pendency of the suit, an application for amendment of the plaint was moved by the plaintiff which was allowed on payment of costs and 14th of September, 1978 was the date fixed for filing the amended plaint alongwith costs. On that date neither the plaintiff nor her counsel could appear and therefore, the suit was dismissed in default by the trial Court. Two days thereafter i.e. on 16.9.1978 an application under Order 9 Rule 9 of C. P. C. for the restoration of the suit was filed. It was stated therein that the plaintiff Man Kaur had informed her counsel that she will not be able to come on 14th September, 1978 and asked him to make the necessary request to the Court in this behalf. However, the application was contested on behalf of the defendants and the parties were allowed to lead evidence. Alongwith the petitioner Man Kaur, she also examined her counsel Shri Tulsi Ram Advocate as A.W. 2. He had stated in his statement that he was informed by the plaintiff earlier that she will not be able to come on Nth of September, 1978, but he being busy in other case could not attend the Court, and when he went to find out, it was told that the case was already dismissed in default.

According to the learned Additional District Judge Shri Tulsi Ram Advocate was unable to prove that there was any sufficient cause or non appearance on 14th of September, 1978 when the suit was dismissed in default The whole approach is unwarranted and illegal. As a matter of fact the learned Additional District Judge has written unnecessary lengthy judgment in this respect. The very fact that the application was moved after two days of the dismissal, and there was no malafides found on the part of the plaintiff for non-appearance on 14th of September, 1978, was itself sufficient to restore the suit. Moreover, in the present case even the advocate for the plaintiff appeared in the witness box and explained that the fault, if any, was not of the plaintiff, but he could not appear in the Court in time when the case was called as he was busy in his other cases.

In these circumstances it was a fit case which should have been restored by the trial Court itself on payment of costs. The Courts below have acted illegally and with material irregularity in the exercise of their jurisdiction resulting in failure of justice. Consequently this petition succeeds and the order of the lower Appellate Court is set aside and the application for restoration is allowed on payment of Rs. 200/- as costs. The parties through their counsel have been directed to appear in the trial Court on 21st of May 1982 and the said costs will be paid in the trial Court to the defendants.