Shri Harbans Lal vs Gurmit Singh and Others

H.S. Bedi, J.—The present petition is directed against the order of the Senior Sub Judge Hoshiarpur dated 6th April, 1992, in which the application filed by the petitioner under Order 9 Rule 4, Code of Civil Procedure, for setting aside the dismissal in default of the suit in question has been declined.

The case of the petitioner who is one of the plaintiffs in the suit was that on the date on which the order of dismissal in default was made, i.e. 23rd October, 1989, he had gone to Shimla in the course of his avocation as he was a taxi driver whereas the other plaintiff Narinder Singh was a resident of Jabalpur and it was the petitioner alone who was pursuing the case. In the order dated 23rd October, 1989, which was passed Under Order 9 Rule 3, Code of Civil Procedure, as none of the parties nor their counsel was present, it has been noted by the Subordinate Judge that the case had been called thrice but nobody had appeared on behalf of either of the parties. As already mentioned, the petitioner thereby filed an application under Order 9 Rule 4. CPC, on which the following issues were framed :-

1) Whether I here are sufficient grounds to order restoration of the suit dismissed in default on 23.10.1989? OPA

2) Relief.

After recording evidence, the learned Sub Judge found that though the application Under Order 9 Rule 4, Code of Civil Procedure, had been made within time yet sufficient cause for setting aside the dismissal in default had not been made out. The primary reason for this finding was that no independent witness had been examined by the petitioner to show that he was held up at Shimla on account of the fact that his taxi had broken down. On the other hand, the Court found that the defendant-respondents had produced a number of witnesses to show that on 23rd October, 1989, the petitioner was in the village and that the story of going to Shimla was a concocted one. Aggrieved by the order of the Sub Judge, the present revision has been filed.

Mr. Jaiswal, learned counsel for the respondents, has raised a preliminary point that the order of the Court impugned in this petition was appealable and, therefore, the present revision was not competent. In answer to this argument, Mr. Cheema, learned counsel for the petitioner, has drawn my attention to the fact that an order recorded on an application Under Order 9 Rule 4 was not appealable one as envisaged under Order 43 Rule 1, Code of Civil Procedure. I have gone through the orders quoted and find that an order! and Under Order 9 Rule 4 is not appealable as it does not find mention in Order 43 Rule 1. In this view of the. matter, the only remedy open to the petitioner was by way of the present revision petition,

Mr. Checrna has also argued that from the evidence led, particularly the evidence of the petitioner himself, it was clear. that on 23rd October, 1989, he had gone to Shimla and had returned on 4th November, 1989, and enquired from his counsel about the fate of his case,and on receiving the requisite information filed the application Under Order 9 Rule 4, CPC on 8th November, 1089. As against this, Mr. Jaiswal, learned counsel for the respondents, has supported the order of the trial court and urged that the witnesses produced by the defendant-respondents clearly make out that the petitioner was in the village ali the time and had not gone to Shimla.

I have heard the arguments raised by the learned counsel and find that the petition deserves to succeed. It is the admitted case that the petitioner (who is the sole plaintiff actively pursuing the litigation) is a taxi driver by profession and his going to Shimla and being detained there on account of the breakdown of his taxi was a matter which was very probable under the circumstances. I see no reason why the affidavit of the petitioner himself on this point should not be believed. It is also clear from the order impugned that the petitioner came back from Shimla on 4th November, 1989 and like a diligent litigant enquired from his counsel about the fate of his case and soon thereafter moved the present application. It is also apparent that the complete reliance of the trial court on the statements of the respondent-witneses who are related to Hardial Singh, one of the defendant-respondents, is somewhat mispleaded on account of they relationship.

Mr. Jaiswal has also urged that there was no reason whatsoever for the non-appearance of the counsel for the petitioner and1 no evidence whatsoever had been led to explain his conduct. The learned counsel appears to be correct on this point but a litigant should not be allowed to suffer for the fault of his counsel.

For the reasons recorded above, the present revision petition, is allowed, the order dated 6th of April, 1992, set aside and the suit restored. There will be no order as to costs.

The parties are directed through their counsel to appear before the trial court on 17th of November, 1993.