Shri Sanatan Dharam Mahabir Dal (Regd.) Bhatinda vs M/s Bharat Motor Company Bhatinda

D.S. Tewstia, J.—These two revision petitions Nos. 73 and 74 of 1974 are directed against an indentical order dated 28th August 1973 dismissing the application of the Plaintiff Petitioner for restoration of the suit which was dismissed in default by order dated 30th April 1971. Since an identical question of law is involved, therefore, a common order is proposed for both the revision petitions

On the date of the order of dismissal dated 30th April, 1971, none of the parties, or their counsel, was present and the Court passed the following order ;

None is present. (sic) is 3.30p.m. The case has been called many times. It appears that the parties are not interested in he suit. The same is hereby dismissed for default. File be consinged to the record room Announced.

Where neither party appears when the suit is called on for heating, the Court may make an order that the suit be dismissed.

Order Rule 4, CPC Code, envisages that where a suit is dismissed either under Rule 2 or Rule 3, then two options are open to the Plaintiff can file a fresh suit if the limitation is available to him and (2) he may apples for setting aside the order of dismissal if he satisfies the court that there was sufficient causes for his non-appearance In the present application, it was mentioned that Shri Banarsi Dass Goyal, Secretary, Shri Sanatan Dharam Sabha. Bhatinda the Plaintiff -for some reason, was out of station on 30.4.1971 and his counsel being busy in some other Court could not appear in the Court in question

Learned Counsel for the Petitioner cites Gourlal Mitra Vs. Sm. Hara Sundari Paul, , in support of his contention that where the causes shown in the application for restoration of the case was that party''s counsel was busy in some other Court and that averment was not denied by the other side, then it would be a good case for restoration the case and recalling of the order dismissing the suit in default

4 The ratio of this decision is not applicable to the facts of the present case In that case, the Court in which the counsel was busy was mentioned, but in the present case the party had made a vague allegation that he had come to know that his counsel was buy in some other Court. He had neither disclosed his source of information nor the name of the Court in which his counsel was busy. In the circumstances, the other side could not be is a position to rebut these allegations. However, from the evidence led by both the sides, it does appear that that the parties had entered into a compromise and the Defendant Respondent herein had agreed to the enhancement of the rent, provided the suit was not dismissed and it was in pursuance of that compromise that neither the Plaintiff and his counsel nor the Defendant and hit counsel appeared in the Court in the given date and thus the suit was get dismissed However, it appears that the Defendant resiled from the said compromise and that led to the effect to get the case restated. The parties cannot take the Court for a ride and abuse the process of the Court. In my opinion, the trial Court rightly refused to restore the case on the ground that no satisfactory cause had been shown for the restorat on of the case.

Mr. S.P Gupta sought to argue that where a case is dismissed under order 9, Rule 3, CPC Code, it is not necessary even to give notice of the restoration application to the other side even if it is so, makes no difference, because it is the Court that has to be satisfied regarding the sufficiency of cause, in the present case, the application being vague, the counsel having not filed his affidavit indicating as to in which Court he was busy and the party not having disclosed the name of the Court in which he was busy, the Court below rightly came to the conclusion that no sufficient cause had been shown.

For the reasons aforementioned, these revisions (Civil Revisions Nos. 73 and 74 of 1974) are dismissed but with no order as to costs.